THE  JUDICIAL  VETO 


THE  JUDICIAL  VETO 


BY 


HORACE  A.  DAVIS 


BOSTON  AND  NEW  YORK 
HOUGHTON  MIFFLIN  COMPANY 


1914 


COPYRIGHT,   1914,   BY  HORACE   A.  DAVIS 
ALL   RIGHTS   RESERVED 

Published  October  1914 


PREFACE 

THE  three  essays  on  judicial  review  which 
make  up  this  book  contribute  each  its 
share  to  the  conclusion  that  deciding  the  con- 
stitutionality of  statutes  is  a  political  and  not 
a  legal  function.  The  tendency  of  courts  as 
well  as  laymen  to  disregard  this  fundamental 
principle  and  to  view  the  whole  subject  as  a 
branch  of  jurisprudence  has  led  to  an  intol- 
erable political  situation.  That  some  change 
will  be  made  becomes  increasingly  evident. 

The  conviction  that  the  subject,  technical 
though  it  may  be,  is  of  vital  and  immediate 
importance  to  the  body  politic  is  my  reason 
for  publishing  these  essays.  The  first  chapter 
attempts  to  sketch  in  untechnical  language 
the  present  situation  and  the  present  ten- 
dency; the  second  proposes  a  common-sense 
remedy;  the  third  is  an  historical  study  of  the 
origin  of  judicial  review  in  the  federal  Supreme 
Court.  Under  a  strictly  logical  arrangement, 
the  historical  essay  should  come  first;  but  its 
value  is  almost  wholly  academic,  and  it  seemed 
better  to  give  the  more  practical  essays  preced- 
ence. 


vi  PREFACE 

"Annulment  of  Legislation  by  the  Supreme 
Court"  (chapter  III)  was  published  in  The 
American  Political  Science  Review  and  is  re- 
published  with  slight  revision  through  the 
courtesy  of  its  editor.  The  other  two  essays 
are  new. 

HORACE  A.  DAVIS. 

BROOKLINE,  1914. 


CONTENTS 

I.   EXTRA-CONSTITUTIONAL  LAW  ....         1 

II.  JUDICIAL  REVIEW 17 

III.  ANNULMENT  OF  LEGISLATION  BY  THE  SUPREME 

COURT 42 

NOTES 123 

APPENDIX:  NEW  YORK  STATUTES  ADJUDICATED  133 


THE   JUDICIAL  VETO 

CHAPTER  I 

EXTRA-CONSTITUTIONAL  LAW 

CITIZENS  and  legislatures  alike  have  been 
besieged  in  recent  years  by  proposals  for 
constitutional  amendment;  yet  in  all  the  dis- 
cussion aroused  by  income  tax,  workingmen's 
compensation,  and  countless  other  reforms,  the 
fact  has  virtually  escaped  notice  that  our  con- 
stitutions are  actually  being  amended  almost 
from  week  to  week  —  often  most  emphatically 
against  our  will.  The  agency  through  which 
such  amendment  is  taking  place  is  judicial 
decision. 

From  colonial  days  the  courts  have  claimed 
the  power  to  interpret  all  written  constitutions, 
and  such  power  has,  though  not  without  some 
early  misgivings,  been  liberally  conceded  to 
them.  Now  the  power  to  interpret  practically 
includes  the  power  to  amend;  for  every  errone- 
ous decision  gives  a  new  twist  to  the  constitu- 
tion, imposes  some  limitation  on  it,  and,  for 


2  THE  JUDICIAL  VETO 

better  or  for  worse,  changes  its  meaning  for  the 
purpose  at  least  of  the  case  decided.  We  all 
know  that  practically  courts  do  decide  Dart- 
mouth College  1  and  Ives  2  cases  and  render 
Dred  Scott  opinions,  and  that  it  takes  a  formal 
constitutional  amendment,  or  a  war,  to  undo 
the  mischief. 

It  is  only  recently  that  this  situation  has 
attracted  popular  attention  and  become  the 
subject  of  political  criticism.  I  shall  consider  in 
another  chapter  the  possibility  of  devising  bet- 
ter means  of  deciding  constitutional  questions; 
the  purpose  of  this  chapter  is  simply  to  point 
out  that  the  principal  effect  of  such  a  scheme, 
whatever  form  it  may  take,  would  be,  not  to 
review  judicial  action  or  to  amend  the  consti- 
tution, but  to  prevent  the  courts  from  amending  it. 

The  origin  of  the  judicial  power  of  constitu- 
tional review  has  recently  been  the  subject  of 
considerable  discussion.3  How  did  the  courts.. 


the  right  to  declare  a  law  unconstitutional 
and  void?  No  such  power  is  in  terms  granted 
by  the  federal  Constitution  itself,  or  by  the 
state  constitutions;  nor  is  there  any  logical 
necessity  why  the  opinion  of  the  judiciary,  one 
of  the  three  branches  of  the  government, 
should  override  the  action  of  another,  the  legis- 


EXTRA-CONSTITUTIONAL  LAW        3 

lature,  and  bind  a  third,  the  executive  (as  well 
as  the  whole  people),  for  all  time.  Nor  has  such 
a  result  always  been  acquiesced  in.  Declara- 
tions by  colonial  courts  that  laws  were  uncon- 
stitutional led  to  riots  in  New  York  and  Rhode 
Island;  and  when  the  United  States  Supreme 
Court  in  1832  declared  a  statute  of  Georgia  to 
be  unconstitutional,  because  it  contravened  a 
treaty  of  the  United  States  with  the  Cherokee 
Indians,  Andrew  Jackson  remarked  —  "John 
Marshall  has  made  his  decision;  now  let  him 
enforce  it";  and  declined  to  interfere  with  the 
State's  actions. 

The  fact  seems  to  be  that  the  judicial  review 
of  legislative  action  appealed  to  the  people  as 
a  natural  and  convenient  method  of  deciding 
apparent  conflicts  between  the  fundamental 
law  as  expressed  in  the  written  constitution, 
and  the  occasional  law  as  expressed  in  acts  of 
Congress  or  of  state  legislatures.  We  also  have 
in  our  federal  government  a  system  which 
seems  peculiarly  to  call  for  a  single  supreme 
umpire,  to  decide  not  only  between  the  federal 
Constitution  and  Congress,  but  also  between 
the  federal  Constitution  and  the  constitutions 
and  laws  of  the  several  States.  What  more 
natural  than  that  the  conflicts  should  be  re- 


4  THE  JUDICIAL  VETO 

ferred  to  an  independent  and  presumably  un- 
prejudiced judiciary,  with  the  Supreme  Court 
of  the  United  States  as  final  arbiter?  And  what 
more  natural  than  that  conflicts  between  state 
laws  and  state  constitutions  should,  by  anal- 
ogy, be  left  to  state  courts? 

Beginning  with  a  jealousy  of  centralized 
power  in  Congress  on  the  part  of  States  giving 
up  their  independence  to  form  a  federal  govern- 
ment, and  followed  in  later  generations  with  a 
distrust  of  legislatures  which  did  not  prove  to 
be  beyond  the  reach  of  corrupting  influences, 
we  have  always  been  more  or  less  suspicious  of 
the  legislative  branch  of  the  government.  It 
has  not  so  promptly  occurred  to  us  that  the 
judicial  branch  might,  though  with  the  best  of 
intentions  and  perfect  honesty  of  character, 
fail  to  interpret  correctly  the  spirit  of  our 
civilization. 

Historical  research  does  not,  however,  carry 
us  far  on  our  path.  In  the  first  place,  it  is 
largely  beside  the  mark,  because  it  is  not  the 
federal  but  the  state  courts  that  have  been 
particularly  active  in  nullifying  legislation ;  and 
in  the  second  place,  it  is  largely  academic, 
because  the  court's  power  to  declare  a  statute 
void  is  now  so  generally  recognized  that  noth- 


EXTRA-CONSTITUTIONAL  LAW       5 

ing  short  of  a  formal  constitutional  amend- 
ment can  be  expected  to  limit  it.  Such  discus- 
sion may  perhaps  remind  the  courts  that  their 
authority  is  neither  clear  nor  unquestioned; 
that  they  owe  to  the  legislature  at  least  a  re- 
spectful attitude  of  presuming  that  every  law 
is  passed  in  the  honest  belief  that  it  is  author- 
ized by  the  constitution;  and  that  the  constitu- 
tion itself  and  not  a  former  judicial  decision  is 
always  the  test  by  which  each  successive  case 
should  be  decided. 

If  instead  of  concerning  themselves  wholly 
with  the  logical  aspect  of  the  question,  the 
courts  had  originally  considered  its  political 
bearing  as  well,  it  is  probable  that  their  atti- 
tude would  from  the  first  have  been  quite 
different.  The  constitutionality  of  a  statute  is) 
fundamentally  a  political  and  not  a  legal  ques-( 
tion.  The  legislature  and  the  executive  are 
much  interested  in  its  solution  as  the  judiciary, 
and  should  be  held  equally  responsible.  There 
is  no  inevitable  necessity  that  any  one  of  the 
three  departments  of  government  should  under- 
take the  function  of  sole  arbiter.  In  most  coun- 
tries the  final  decision  rests  with  the  legislature; 
it  might  conceivably  be  vested  in  the  executive, 
especially  after  consultation  with  the  judiciary. 


6  THE  JUDICIAL  VETO 

In  this  country  alone,  largely  through  the  fail- 
ure of  the  judges  themselves  as  well  as  the 
public  to  understand  what  was  happening,  has 
the  function  been  allowed  to  vest  in  the  judi- 
ciary. It  is  not  surprising  that  so  important  a 
problem  solved  in  so  blind  and  haphazard  a 
manner  now  returns  to  plague  us. 

The  particular  victims  of  judicial  criticism 
have  been  laws  intended  to  improve  social  con- 
ditions, and  more  particularly  the  conditions 
of  wage-earners,  in  accordance  with  modern 
economic  theories.  The  sweat-shop  law,  the 
bake-house  law,  and  the  workingmen's  com- 
pensation act  of  New  York  are  good  examples; 
but  for  convenience  of  reference,  they  may  all 
be  fairly  typified  by  the  eight-hour  law. 

It  is  hardly  necessary  to  point  out  that  such 
laws  are  intended  to  change  existing  conditions. 
They  are  not  mere  regulations  for  future  guid- 
ance, much  less  codifications  of  existing  law  or 
custom;  they  are  positive,  perhaps  drastic, 
restrictions  on  methods  and  conditions  under 
which  business  men  are  operating,  and  they  are 
necessarily  open  to  the  criticism  that  they  may 
injure  some  man's  financial  investment  or 
restrict  his  activities.  If  a  manufacturer  is 
employing  two  hundred  workmen  in  day  and 


EXTRA-CONSTITUTIONAL  LAW        7 

night  shifts  of  twelve  hours  each,  and  the  legis- 
lature enacts  that  the  working  day  shall  not 
exceed  eight  hours,  the  manufacturer  may 
jump  to  the  conclusion  that  his  pay-roll  will  be 
increased  by  fifty  per  cent  through  the  neces- 
sity of  hiring  a  third  shift,  and  that  the  extra 
expense  will  drive  him  into  bankruptcy.  Of 
course  his  conclusion  may  be,  and  probably  is, 
quite  far  from  the  truth,  in  ignoring  the  in- 
creased capacity  of  his  eight-hour  laborers;  but 
the  argument  remains,  and  can  only  be  refuted 
by  actual  test.  As  the  question  is  ordinarily 
carried  into  court  by  injunction  before  the 
effects  of  the  new  conditions  can  be  demon- 
strated, the  argument  is  certainly  plausible. 

These  facts  suggest  the  ground  of  legal  chal- 
lenge of  such  laws.  The  argument  is  that  the 
statute,  by  depriving  some  person  of  liberty  or 
property,  violates  the  Fourteenth  Amendment 
of  the  federal  Constitution,  which  provides  — 
"nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of 
law."  What  constitutes  "due  process  of  law" 
is  not  fully  defined;  but  the  courts  have  always 
held  that  the  enactment  of  a  statute  by  the 
legislature  is  not  in  itself  sufficient. 

The  Fourteenth  Amendment  has  given  rise 


I 


8  THE  JUDICIAL  VETO 

*  to  an  immense  amount  of  litigation.  An  inspec- 
tion of  the  cases  in  which  it  has  been  invoked 
justifies  the  conclusion  that  no  statute  affect- 
ing, however  remotely,  the  habits  or  business 
methods  of  any  person  with  money  enough  to 

.  bring  a  lawsuit  is  safe  from  attack  on  the 
ground  of  unconstitutionality.  It  has  become 
the  fashion  in  New  York  to  argue  that  every 
statute  is  unconstitutional,  and  the  courts  of 
that  State  have  become  so  technical 4  in  their 
decisions  that  it  is  an  open  question  whether 
any  law  there  is  valid  until  it  has  been  sus- 
tained by  the  Court  of  Appeals.  The  method  of 
attack,  to  take  an  eight-hour  decision  and  a 
few  recent  examples  at  random,  is  this :  — 

(1)  The  New  York  eight-hour  law  contained 
a  provision  that  municipal  contracts  must  pro- 
vide for  eight  hours'  employment  only,  and 
that  a  contractor  violating  such  provision 
could  not  recover  his  payment.  It  was  argued, 
and  the  Court  of  Appeals,  declaring  this  statute 
to  be  unconstitutional,5  held,  that  as  the  con- 
tractor who  brought  suit  had  finished  the 
work,  he  was  entitled  to  payment,  and  to  deny 
payment  (because  he  had  violated  both  con- 
tract and  statute  by  working  his  men  more 
than  eight  hours  a  day)  would  be  to  deprive 


EXTRA-CONSTITUTIONAL  LAW        9 

him  of  his  property  without  due  process  of 
law! 

(2)  A   statute   required   transient   retailers 
advertising   bankrupt   stock   to   be   licensed. 
The  Court  of  Appeals  held  the  law  unconstitu- 
tional 6  because  every  man  "  has  the  unqualified 
right  to  sell"  his  goods.  The  Chief  Judge  went 
on  to  say  that  he  believed  that  the  statute  was 
not  passed  in  good  faith  to  prevent  fraud,  but 
was  intended  to  protect  local  trade  from  com- 
petition.  This  certainly  is  a  good  example  of 
the  attitude  of  open  contempt  and  distrust 
which   the  courts   are  beginning   to   assume 
toward  the  legislature. 

(3)  The  State  of  Illinois  created  a  free  em- 
ployment agency  which  was  forbidden  to  fur- 
nish lists  of  laborers  in  cases  of  strikes  and  lock- 
outs. The  Supreme  Court  held  the  law  uncon- 
stitutional 7  because  it  deprived  both  employer 
and  workman  of  the  "right  of  contract"  which, 
said  the  Chief  Justice,  "is  both  a  liberty  and  a 
property  right." 

Logically,  if  these  arguments  are  valid  in  any 
case,  —  and  their  principle  has  repeatedly  been 
sustained  by  the  courts,  both  state  and  federal, 
—  it  becomes  impossible  to  draw  any  line. 
Legislation  would  come  to  a  standstill,  and  so- 


10  THE  JUDICIAL  VETO 

ciety  would  be  crystallized  into  the  condition  in 
which  it  existed  in  1868,  when  the  Fourteenth 
Amendment  took  effect.  The  courts  at  once 
recognized  this  dilemma,  and  began  to  except 
from  the  operation  of  the  rule  a  series  of  laws 
supposed  to  be  enacted  under  a  supreme  gov- 
ernmental authority  called  the  "police  power." 
This  no  court  has  been  willing  to  define  except 
in  the  vaguest  terms.  It  can  best  be  under- 
stood by  examples.  For  instance,  legislation 
has  been  upheld  regulating  employment  in 
mines,  by  forbidding  the  labor  of  women,  chil- 
dren, and  convicts,  and  limiting  the  day's  work 
to  eight  hours;8  providing  for  capital  punish- 
ment by  electricity; 9  granting  an  exclusive 
right  to  maintain  a  slaughter  house  within  a 
city; 10  providing  for  the  drainage  of  swamp 
lands;  n  regulating  primary  elections.12 

Naturally  courts  have  differed  on  the  ques- 
tion whether  any  given  law  does  or  does  not 
come  within  the  "police  power."  One  State 
will  sustain  a  ten-hour  law  for  women,13  while 
another  will  declare  it  unconstitutional.14  So  it 
remains  a  gamble  whether  any  particular  law 
is  valid  or  not;  and  the  odds  continue  to  be 
against  it,  because  most  States  have  a  provision 
in  their  local  constitutions  identical  with  the 


EXTRA-CONSTITUTIONAL  LAW      11 

Fourteenth  Amendment,  and  the  statute  has  to 
pass  the  ordeal  of  the  state  court  interpreting 
its  own  constitution  as  well  as  the  United 
States  Supreme  Court  interpreting  the  federal 
Constitution. 

Moreover,  the  courts  have  created  a  virtual 
exception  to  the  "police  power"  by  inventing 
"the  right  to  contract."  This  phrase  was  first 
sanctioned  as  recently  as  1897.^)  Its  far- 
reaching  scope  was  quickly  recognized,  and  it 
has  been  widely  adopted  by  conservative 
courts;  for  it  is  diametrically  opposed  to  the 
theory  of  the  police  power.  If  the  individual 
has  a  "right"  to  contract,  how  can  the  legisla- 
ture restrict  such  "right"  without  depriving 
him  of  liberty  or  property?  It  may  be  that  he 
will  contract  to  store  dynamite  in  his  front 
yard,  or  to  send  his  ten-year-old  son  to  work  on 
night  shifts  in  a  coal  mine;  but  has  he  not  a 
"right  to  contract?" 

The  "right  to  contract"  is  generally  called 
"a  liberty."  As  such  it  is  easy  to  see  that  it 
must  give  way  to  the  best  interests  of  the  com- 
munity. The  restrictions  necessarily  imposed 
by  society  upon  personal  liberty  are  borne  in 
upon  the  individual  from  his  cradle.  The  dis- 
tinction between  liberty  and  license  are  taught, 


12  THE  JUDICIAL  VETO 

empirically  at  least,  in  the  family  and  the 
grammar  school.  They  are  so  fundamental,  so 
obvious,  and  so  necessary  that  no  citizen  of  the 
United  States,  unless  he  be  a  lunatic  or  possibly 
an  anarchist,  contends  for  unrestricted  liberty. 
The  old  cry,  "Cannot  I  do  what  I  will  with 
mine  own?"  is  heard  less  and  less  as  the  inter- 
ests of  the  community  as  a  whole  are  more  and 
more  widely  recognized.  If  liberty  were  the 
only  foundation  for  the  "right  to  contract,"  it 
would  need  no  argument  to  prove  that  the 
phrase  has  added  nothing  to  constitutional 
law.  But  the  word  "right,"  with  its  impli- 
cation of  property,  gives  a  most  insidious 
twist  to  the  phrase.  It  suggests  to  the  con- 
servative mind,  accustomed  to  regard  prop- 
erty as  the  foundation  of  society,  an  excuse  for 
nullifying  any  law  which  impinges  upon  this 
"right." 

Call  it  what  you  will,  the  "right  to  con- 
tract" effectually  neutralizes  the  "police 
power,"  and  leaves  to  chance  the  validity  of 
any  law  attempting  to  regulate  social  or  eco- 
nomic relations. 

It  does  not  seem  to  have  occurred  to  the 
courts  that  there  may  be  some  subjects  which' 
the  constitutions  have  not  undertaken  to  regu- 


EXTRA-CONSTITUTIONAL  LAW      13 

late.  It  cannot  be  supposed  that  in  1788,  nor 
even  in  1868,  the  citizens  of  this  country  were 
in  their  constitution-building  attempting  to 
provide  for  or  against  an  eight-hour  law.  The 
question  simply  was  not  present  in  their  minds. 
What  their  attitude  would  have  been  on  such 
a  subject  we  can  only  surmise.  But  we  have 
from  the  first  adopted  the  spirit  of  liberal  con- 
struction. We  have  permitted  Congress  to 
issue  legal-tender  notes,  we  haAz^LS^e^jrjyerand 
improvements  sustained,  and  we  have 

ted   the  construction  of  the  doubtful 

, 

general  welfare"  clause  as  authorizing  prac- 
Jically^unljmited  f unct  i  on  p-*t  centralized  gov- 
.grnment.  It  has  never  been  seriously  argued 
that  the  federal  Constitution  or  its  amend- 
ments were  intended  to  crystallize  society  into 
the  form  it  happened  at  the  moment  to  have 
assumed,  and  to  prevent  all  further  growth 
and  change  of  standards. 

The  truth  of  the  matter  seems  to  be  that  the 
great  questions  of  social  and  economic  relations 
now  foremost  among  our  political  problems 
are  within  neither  the  letter  nor  the  spirit  of 
constitutional  limitations,  and  are  not  properly 
cognizable  by  the  courts  at  all.  They  should 
be  excepted  entirely  from  judicial  review,  in- 


14  THE  JUDICIAL  VETO 

stead  of  being  tested  by  any  theory  of  "police 
power."  No  matter  how  liberal  a  court  may 
fye,  —  and  it  is  only  fair  to  acknowledge  that 
the  United  States  Supreme  Court  has.  on  the 
whole  been  more  liberal  than  the  courts  of 
most  of  the  States,  —  the  difference  in  the 
point  of  view  is  vital.  Under  the  "police- 
power"  theory  new  legislation  is  presump- 
tively invalid  because  it  hasHaken  somebody's 
property  without  due  process  of  law.  It  can 
be  sustained  only  as  an  exercise  of  an  unde- 
fined power  in  the  government  to  promote  the 
morals,  health,  and  safety  of  the  people. 
Again,  it  leaves  to  the  courts  the  function  of 
deciding  the  precise  boundaries  of  such  legis- 
lation. For  instance,  five  members  of  the  court 
may  think  that  a  ten-hour  law  would  be  valid, 
while  only  four  would  go  so  far  as  an  eight- 
hour  law;  and  consequently  the  eight-hour  law 
would  be  void  for  all  time,  though  the  court 
might  undergo  a  change  in  membership  the 
next  week  which  would  shift  the  majority  over 
to  the  eight-hour  view.  Such  questions  ought 
not  to  be  decided  by  any  court.  They  are 
plainly  the  function  of  the  legislature. 

It  is  worth  while  to  consider  for  a  moment 
where  the  present  system  is  leading  us.    As 


EXTRA-CONSTITUTIONAL  LAW       15 

already  pointed  ont.Trevery  decision  by  a  court  I 
>f  1agt.  resort  restricting  legislation,  in^sojar 
as  it  goes  beyond,  the  words  of  Jhejonstitu- 
tian,  is  4au^£ffect  a  constitutional ^amendment. 
It  establishes  a  precedent  which  the  court  as- 
sumes to  follow  in  all  future  cases  —  perhaps 
a  principle  on  which  it  will  decide  many  dif- 
ferent  kinds  of  future  cases.  The  invention  of 
a  theory  like  the  "right  to  contract"  is  not 
mere  "judicial  legislation,"  an  evil  frequently 
discussed  nowadays;  it  is  much  more  —  it  is 
judicial  constitution-making.  A  notorious  ex- 
ample of  such  a  mischief,  though  fortunately 
on  a  different  subject,  is  the  familiar  Dart- 
mouth College  case, 16  where  the  United  States 
Supreme  Court,  on  reasoning  that  has  never 
been  understood,  decided  that  a  corporate 
franchise  was  an  irrevocable  contract.  That 
decision  came  as  a  thunderbolt  to  the  whole 
country,  which  had  been  proceeding  on  the 
true  theory  that  the  States  had  the  same  right 
to  alter,  amend,  or  repeal  a  franchise  that  they 
had  to  grant  it.  Its  effect  was  to  put  forever 
beyond  state  control  all  the  corporate  charters 
then  in  existence.  So  when  the  court  has  de- 
cided that  an  eight-hour  law  is  unconstitu- 
tional, it  is  immaterial  that  the  subject-matter 


16  THE  JUDICIAL  VETO 

is  not  covered  by  any  provision  of  the  consti- 
tution, it  is  immaterial  that  the  reasoning  of 
the  judges  is  unsound,  it  is  immaterial  that  the 
public  interests  urgently  demand  such  legis- 
lation, and  that  the  great  majority  of  the  citi- 
zens are  heartily  in  favor  of  the  statute:  the 
law  is  dead,  and  the  situation  is  beyond  all 
relief  except  by  amendment  of  the  constitu- 
i  tion.  The  court  has  in  an  hour's  time,  and 
perhaps  by  a  single  vote,  virtually  amended 
the  constitution.  Is  it  just,  or  is  it  essential, 
that  in  order  to  correct  this  mischief  the  peo- 
ple should  be  relegated  to  the  difficult  and 
cumbersome  method  of  formal  constitutional 
amendment  with  all  its  effort,  expense,  and 
years  of  delay?  17 


CHAPTER   II 

JUDICIAL  REVIEW 

The  Present  System 

THE  American  theory  of  constitutional  law 
is  that  a  statute  which   does   not  con- 
form to  the  commands  and  limitations  of  the 
constitution  is  utterly  void  —  mere  waste  pa- 
per.   No  duties  are  imposed  by  it;  no  rights 
can  be  founded  on  it;  it  furnishes  no  protec-  ' 
tion  to  those  who  undertake  to  obey  it;  it  can 
and  must  be  pronounced  invalid  at  the  pri- 
vate instance  of  any  person  who  claims  to  be  , 
aggrieved  by  it. 

This  theory  is  based  on  logic,  with  a  fine 
disregard  for  political  consequences;  and  it  is 
a  tribute  to  our  political  adaptability  that  it 
has,  on  the  whole,  wrought  so  little  mischief. 
Stated  as  an  original  proposition,  it  is  incon- 
ceivable that  such  a  rule  could  ever  have  been 
accepted.  Its  inevitable  result  is  to  make 
every  man  his  own  judge  of  the  validity  of 
every  statute  until  it  has  been  construed  by 
the  court  of  last  resort,  and  to  impose  on  him 
the  burden  of  guessing  at  his  own  peril  whether 


18  THE  JUDICIAL  VETO 

or  not  it  will  be  judicially  approved.  The 
mere  statement  of  such  a  proposition  would 
doubtless  have  been  considered  a  reductio  ad 
absurdum  of  the  theory  if  it  had  been  urged 
when  the  courts  were  first  claiming  the  right 
of  legislative  review.  Even  now  it  ought  to  be 
sufficient  to  demonstrate  a  radical  error  in 
the  judicial  attitude. 

The  reason  for  the  prevailing  rule  is  not  far 
to  seek.  It  grew  naturally,  almost  inevitably, 
out  of  a  political  philosophy  wholly  engaged 
in  determining  whether  the  courts  ought  to 
have  any  review  of  legislation  —  whether  they 
could  under  any  circumstances  declare  a  law 
void.  None  of  our  early  constitutions  pre- 
scribed any  method  of  testing  the  constitu- 
tionality of  statutes,  except  for  the  barren 
experiment  of  a  council  of  censors  attempted 
in  Pennsylvania,  Vermont,  and  New  York. 
In  those  States  a  council  was  created  with  the 
duty  of  supervising  legislation  and  either  re- 
porting to  the  people  instances  of  unconsti- 
tutionally, as  in  Pennsylvania  and  Vermont, 
or,  as  in  New  York,  vetoing  the  statute,  which 
might  then  be  reenacted  by  a  two-thirds  vote 
of  the  legislature.  None  of  the  councils  had 
power  to  give  conclusive  effect  to  its  opinion,1 


JUDICIAL  REVIEW  19 

and  they  were  all  abolished  after  short  and 
ineffectual  careers.  Even  in  these  States,  and 
still  earlier  in  the  others,  the  question  of  judi- 
cial review  was  squarely  presented  to  the 
courts. 

Confronted  with  the  problem  of  a  written 
constitution  adopted  by  the  people  as  a  fun- 
damental law  and  a  statute  enacted  by  the 
people's  representatives  in  legislature  in  plain 
violation  of  the  provisions  of  the  constitution, 
the  great  majority  of  the  judges  felt  that  jhej 
Could  preserve  .the  constitution  intagt^nnl; 
.by  disregarding  the_statute.  They  declai 
with  substantial  unanimity  that  such  a  law 
was  "void."  They  seem,  indeed,  to  have  gone 
out  of  their  way  with  rather  undignified  eager- 
ness to  announce  this  doctrine  in  cases  where 
the  conflict  was  by  no  means  plain,  or  even 
where  it  was  not  involved  at  all;2  but  whatever 
the  issue  that  called  forth  the  discussion,  they 
all  confined  their  opinions  to  the  purely  logical 
proposition  that^hat  is  contrary  to  the  cpn-i 
^stitution  cannot  be  law,  andJ^aLajvoid  stj 
jute  is  of  no  effectjwhatever.  As  a  syllogism 
which  is  as  far  as  they  undertook  to  test  it  — 
no  fault  can  be  found  with  this  branch  of  their 
reasoning.  Tested  by  the  practical  require- 


20  THE  JUDICIAL  VETO 

ments  of  a  working  government,  or  by  com- 
mon sense,  the  rule  is  pregnant  with  dangers 
from  which  the  nation  has  been  lucky  to  escape 
so  lightly  as  it  has.  The  seed  of  evil  has  never- 
theless been  sown,  and  it  is  time  that  we  awoke 
to  the  need  of  sounder  methods. 

Practically  the  effect  of  deciding  in  a  private 
controversy  that  a  duly  enacted  statute  has 
never  been  law  is  demoralizing  to  the  legisla- 
tures, the  courts,  and  the  people.  It  gives  the 
lawmakers  a  feeling  of  irresponsibility,  since 
their  work,  if  imperfect,  is  wholly  undone;  it 
puts  the  courts  in  a  false  position,  because  they 
are  required  to  decide  on  insufficient  data  and 
prejudiced  argument  in  a  case  that  may  be 
instigated  and  controlled  by  parties  interested 
solely  to  annul  the  statute;  it  increases  popular 
disrespect  of  authority  by  making  every  man 
his  own  judge  of  every  new  law.  Politically 
it  seems  almost  axiomatic  that  a  statute  duly 
enacted  should  be  a  law  to  all  intents  and  pur- 
poses until  it  has  been  declared  otherwise  by 
proper  authority.  At  the  risk,  then,  of  pro- 
foundly offending  the  conventional  legal  mind, 
I  suggest  that  it  may  be  worth  while  to  aban- 
don the  prevailing  logical  but  disastrously  aca- 
demic view,  and  see  whether  the  simple  expe- 


JUDICIAL  REVIEW  21 

dient  of  applying  common  sense  to  the  problem 
will  not  suggest  some  method  of  preserving 
our  constitutions  without  throwing  us  back  on 
a  "judicial  oligarchy,"  on  the  one  hand,  or  an 
unreflecting  popular  vote,  on  the  other. 

First  let  us  examine  somewhat  more  in  de- 
tail the  objections  to  the  present  system,  which 
grow  out  of  the  two  features  (1)  that  the  law 
is  considered  void  from  the  beginning,  and  (2) 
that  the  decision  is  made  in  litigation  between 
private  parties. 

Retroactive  Effect.  One  obvious  effect  of  our 
theory  of  judicial  review  is  to  create  a  period 
of  doubt  after  the  enactment  of  every  impor- 
tant statute.  Is  it  or  is  it  not  a  law?  Must  we 
conform  to  it  at  an  inconvenience  and  expense 
that  will  not  be  compensated  if  the  statute 
shall  eventually  be  upset  by  the  courts;  or 
shall  we  disregard  it  under  penalty,  perhaps, 
of  criminal  prosecution  if  the  law  be  sus- 
tained? From  this  dilemma  we  have  as  a 
nation  escaped  with  surprisingly  slight  dam- 
age. But  that  it  is  real,  and  may  at  any  mo- 
ment lead  to  serious  consequences,  has  been 
dramatically  illustrated  in  at  least  one  in- 
stance. In  1857  the  New  York  legislature 
passed  an  act  reorganizing  the  police  force  of 


22  THE  JUDICIAL  VETO 

the  city  of  New  York.  The  mayor  and  the 
great  majority  of  the  police  force,  believing 
the  law  to  be  unconstitutional,  and  supported 
in  that  view  by  some  of  the  ablest  lawyers  of 
the  day,  refused  to  obey  it.  The  new  metro- 
politan board  received  the  support  of  some 
three  hundred  policemen,  while  the  old  muni- 
cipal force  retained  eight  hundred.  Each  side 
undertook  to  dismiss  those  who  refused  alle- 
giance and  to  fill  its  ranks  with  new  men.  Soon 
two  complete  and  hostile  police  forces  were 
in  existence,  and  after  frequent  minor  colli- 
sions they  met  on  the  steps  of  the  City  Hall 
in  a  fierce  battle  in  which  many  were  wounded 
and  several  nearly  killed.  The  disorder  was 
quelled  only  by  the  arrival  of  the  militia  and 
the  arrest  of  the  mayor  by  the  sheriff.  During 
the  period  of  anarchy  the  city  was  wholly 
demoralized;  thieves  grew  rich  and  murderers 
went  unpunished.3 

When  order  was  finally  reestablished  in  the 
city  the  mayor  still  had  his  own  troubles  to 
meet.  The  injured  metropolitan  policemen 
sued  him  and  recovered  judgments  aggregat- 
ing thirteen  thousand  dollars;  so  that  in  the 
end  the  mayor  was  disgraced  and  ruined,  fin- 
ancially and  politically,  because  he  guessed 


JUDICIAL  REVIEW  23 

wrong  on  a  question  of  law  so  doubtful  that 
the  Court  of  Appeals  were  divided  in  opinion 
on  it,  six  to  two. 

The  rule  of  the  personal  liability  of  a  public 
officer  for  guessing  wrong  is  the  logical  con- 
sequence of  the  doctrine  of  nullity,  and  pre- 
vails in  the  majority  of  States,  though  there 
are  some  exceptions.4  For  instance,  a  police- 
man arresting  a  drunkard  under  the  direction 
of  an  act  afterwards  pronounced  unconstitu- 
tional is  liable  in  damages  for  false  arrest.5 
So  a  statute  in  terms  repealed  by  an  uncon- 
stitutional law  remains  in  force,  and  a  person 
may  be  criminally  prosecuted  for  not  comply- 
ing with  it.6  Purely  private  relations  are 
everywhere  conceded  to  be  unaffected  by 
"void"  laws;  so  that  individuals  who  built  a 
bridge  under  legislative  authorization  after- 
wards annulled  by  the  courts  not  only  lost  their 
investment,  but  had  to  turn  over  their  toll 
receipts  to  their  complaining  rival.7 

Many  other  examples  might  be  added  to 
show  how  the  unfortunate  citizen,  whether 
in  an  official  position  or  in  private  life,  while 
seeking  merely  to  obey  the  law,  has  committed 
a  crime  or  incurred  disastrous  liability  when 
it  turns  out  that  the  legislative  act  was  void; 


24  THE  JUDICIAL  VETO 

but  the  situation  after  all  is  familiar.  It  is 
getting  quite  common  for  the  administrative 
departments  of  the  government  practically  to 
suspend  operations  under  a  new  statute  un- 
til it  can  be  tested  in  the  courts.  A  quick 
decision  is  sought  by  those  most  concerned,  and 
a  test  case  soon  appears  in  court  and  is  hurried 
through  to  the  highest  tribunal.  This  process 
somewhat  relieves  our  difficulties;  but  it  is 
unscientific,  limited  to  statutes  of  great  general 
importance,  and  fraught  with  dangers  of  its 
own. 

Private  Litigation.  The  courts  have  always 
prided  themselves  on  the  fact  that  their  anul- 
ment  of  legislation  is  merely  an  incident  of 
their  decision  of  a  case  before  them  for  adju- 
dication. No  method  of  reviewing  legislation 
could  possibly  be  less  correct  on  principle, 
and  less  an  object  of  pride;  but  passing  for  the 
moment  the  question  of  principle,  let  us  look 
at  some  of  the  practical  dangers. 

For  one  thing  a  private  lawsuit  (including 
a  criminal  prosecution)  is  litigated  according 
to  the  means  of  the  parties  and  with  the  pur- 
pose, not  of  attaining  the  best  possible  review 
of  constitutional  principles,  but  of  securing  or 
resisting  a  judgment  for  money,  for  equitable 


JUDICIAL  REVIEW  25 

relief,  or  for  conviction  of  a  crime.  The  parties 
may  have  very  uneven  opportunity  for  secur- 
ing proper  evidence,  their  attorneys  may  vary 
immensely  in  ability,  and  it  often  happens  that 
while  one  side  makes  a  fierce  attack  on  a  stat- 
ute, the  other  submits  but  an  indifferent  de- 
fense, or  is  neutral,  or  possibly  sympathetic  on 
that  issue.  The  human  bias  that  even  courts 
are  not  free  from  is  also  an  element  affecting 
the  decision;  and  the  old  saying  that  "hard 
cases  make  bad  law"  makes  no  exception  of 
constitutional  cases. 

Again,  the  litigation  may  not  be  brought  in 
good  faith.  There  was,  for  instance,  evidence 
that  the  famous  Ives  case  8  was  wholly  under 
the  control  of  the  defendant  railway,  which 
was  interested  only  in  defeating  the  working- 
men's  compensation  act.  Intentional  diso- 
bedience to  a  statute  carrying  criminal  pen- 
alties is  a  favorite  method  of  creating  a  test 
case;  and  such  cases  are  not  always  free  from 
the  suspicion  that  they  are  brought  in  the 
domain  of  a  prosecuting  officer  who  is  friendly 
to  the  defendant's  view. 

The  rules  of  evidence  applicable  to  private 
controversies  may  also  keep  out  of  the  case  all 
the  facts  which  would  inform  the  courts  why 


26  THE  JUDICIAL  VETO 

the  statute  was  enacted.  The  judges  are  thus 
thrown  back  on  preconceived  ideas,  preju- 
dices, and  maxims,  and  may  in  their  academic 
reasoning  exhibit  an  almost  pathetic  ignorance 
of  real  conditions.  In  the  New  York  sweat- 
shop case,9  for  instance,  the  court  certainly  was 
not  thinking  of  the  noisome  tenements  of  an 
overcrowded  city  when  it  said:  "It  cannot  be 
perceived  how  the  cigarmaker  is  to  be  improved 
in  his  health  or  his  morals  by  forcing  him  from 
his  home  and  its  hallowed  associations  and 
beneficent  influences,  to  ply  his  trade  else- 
where." So  in  the  woman's  labor  law  case  10 
the  court  cheerfully  ignored  all  the  teachings 
of  biology  in  relation  to  the  woman's  physical 
capacity  for  manual  labor  when  it  said:  "An 
adult  female  is  not  to  be  regarded  as  a  ward 
of  the  State,  or  in  any  other  light  than  the  man 
is  regarded,  when  the  question  relates  to  the 
business  pursuit  or  calling.  She  is  no  more  a 
ward  of  the  State  than  is  the  man." 

The  legal  practice  on  applications  for  in- 
junction, also,  is  ill  adapted  to  the  decision 
of  constitutional  questions.  It  permits  the 
parties  to  bring  their  case  into  court  on  affi- 
davits, and  thus  paves  the  way  for  gross  exag- 
gerations on  the  part  of  an  apprehensive  plain- 


JUDICIAL  REVIEW  27 

tiff.  It  has  frequently  proved  that  the  ill 
effects  expected  by  merchants  and  manufac- 
turers from  statutes  regulating  prices  and  the 
hours  and  conditions  of  labor  have  not  mate- 
rialized. This  is  notably  true  of  laws  shorten- 
ing the  working  days.  Yet  the  case  is  prer 
sented  and  finally  decided  on  sworn  recitals 
of  impending  catastrophe  which  sound  plau- 
sible enough,  but  really  are  mere  imagination. 
Finally,  the  interests  most  at  stake  —  those 
of  the  public  —  are  substantially  ignored. 
Instead  of  being  the  real  issue  they  are  made 
a  matter  of  incidental  argument.  It  is  the 
people  of  the  State  by  whom  and  for  whom 
the  law  is  made  —  and  yet  the  law  is  over- 
thrown without  giving  them  a  hearing.  Are 
we  not  entitled  to  ask  whether  such  procedure 
is  itself  "due  process  of  law"? 

The  Rights  of  the  State 

A  law  is  an  act  of  the  supreme  legislative 
body  of  a  State  —  an  expression  of  the  will  of 
the  people  through  their  representatives  duly 
elected.  It  requires  many  formalities  of  pro- 
cedure, imposed  to  prevent  hasty  or  uncon- 
sidered  action;  and  in  spite  of  specific  instances 
to  the  contrary,  it  fairly  reflects  the  will  of  a 


28  THE  JUDICIAL  VETO 

majority  of  the  people.  J^e^olitical  remedy  ^ 
Jor  unsatisfactory  legislation  is  the  ballot,  by  / 
..which  a  new  body  of  lawmakersjnayjj^elected  / 
^aUQ^Olient  Jnteryals  and  as  a  result  of  which  i 
40ost    laws    that    are    disapproved    may    be/ 
^rom£tly_rejp£aled.  It  is  true  that  money  may 
be  extravagantly  appropriated  and^sgent,  be- 
fore the  next  election,  and  that  franchises  may 
be  granted  which  create  vested  and  permanent 
rights;  but  laws  are  not  often  enacted  in  defi- 
ance of  an  alert  public  opinion. 

It  is  coming  to  be  recognized  more  and  more 
clearly  that  direct  responsibility  to  the  peo- 
ple is  the  best  assurance  of  competent  govern- 
ment. This  view  has  found  its  most  emphatic 
expression  in  municipal  affairs,  where  for 
many  years  there  has  been  a  steady  increase 
in  the  power  of  mayors  at  the  expense  of  local 
legislative  bodies  and  subordinate  officials; 
and  it  is  echoed  in  the  growing  authority  of 
our  governors  and  presidents  in  legislation. 
Any  influence  which  tends  to  weaken  respon- 
sibility or  obscure  it  is  fundamentally  vicious. 
Such  an  influence  is  the  interference  of  our 
courts  in  legislation.  Not  only  does  it  divert 
the  attention  of  the  public;  but  it  has  paved 
the  way  for  a  hypocritical  system  of  lawmak- 


JUDICIAL  REVIEW  29 

ing  susceptible  to  great  abuse.  A  legislature, 
reluctantly  stirred  to  action  by  public  opinion, 
frames  a  statute  to  meet  the  current  demand 
by  curbing  the  power  of  the  political  boss  or 
correcting  some  corporate  evil.  After  the  first 
enthusiasm  has  begun  to  ebb  and  the  first 
critical  examination  of  the  statute  by  the  pub- 
lic has  resulted  in  a  favorable  verdict,  amend- 
ments begin  to  make  their  appearance,  among 
which  are  one  or  more  deliberately  designed 
to  make  the  whole  statute  unconstitutional. 
As  the  law  will  be  void  from  the  beginning,  if 
unconstitutional  at  all,  the  threatened  boss 
or  corporation  finds  it  easier  and  just  as  safe 
to  rely  on  this  insidious  practice.  Such  pro- 
cedure was  openly  charged  in  court  when  the 
New  York  franchise  tax  act  was  challenged  i 
as  unconstitutional  by  the  public  service  com- 
panies —  though  in  that  case  their  attorneys 
fortunately  guessed  wrong. 

As  no  statute  is  certainly  valid  until  ap- 
proved by  the  judges,  so  the  first  step  to  check 
vicious  legislation  is  to  test  it  in  court.  Mean- 
while the  authors  of  it  escape  attention  and 
perhaps  secure  a  reelection  while  the  litiga- 
tion is  still  under  way.  In  any  event,  by  the 
time  a  decision  is  reached  the  public  interest 


30  THE  JUDICIAL  VETO 

has  cooled,  and  if  the  law  is  pronounced  un- 
constitutional, little  further  attention  is  paid 
to  the  legislators  who  voted  for  it.  When  a  bad 
law  is  declared  constitutional  or  a  good  law  un- 
constitutional, the  public  is  bewildered  and  im- 
potently  vents  part  of  its  wrath  on  the  courts. 
Through  their  increasing  interference  in 
legislation  the  courts  have  finally  placed  them- 
selves in  a  false  position  and  have  succeeded 
in  introducing  into  our  legislative  machinery 
a  complication  false  in  principle  and  vicious 
in  effect.  Some  remedy  must  and  undoubtedly 
will  be  applied  at  an  early  date.  If  no  more 
efficient  plan  is  devised  than  the  somewhat 
clumsy  "recall  of  judicial  decisions,"  it  seems 
altogether  likely  that  either  the  power  of 
judicial  review  will  be  taken  away  from  the 
courts  altogether  or  that  all  important  legis- 
lation will  be  enacted  in  the  guise  of  amend- 
ment to  the  constitution.11  It  has,  therefore, 
become  one  of  the  most  important  political 
problems  of  the  day  to  determine  what  review 
of  legislation,  if  any,  there  should  be. 

A  Remedy 

Believing  as  I  do  that  written  constitutions 
are  an  extremely  valuable  feature  of  our  gov- 


JUDICIAL  REVIEW  31 

eminent  and  should  not  be  relegated  to  the 
level  of  statute  law,  I  venture  to  suggest  a 
method  of  reviewing  legislation  which  involves 
no  radical  changes,  and  yet  would,  I  believe, 
cure  the  defects  of  the  existing  procedure.  My 
plan  is  based  on  a  simple  proposition,  so  obvi- 
ously sound,  as  it  seems  to  me,  that  it  may  be 
a  commonplace  maxim  of  political  philosophy 
—  and  yet  I  do  not  recall  running  across  it  in 
any  of  the  discussion  over  judicial  review.  It 
is  this: 
THE  STATE  is  AS  MUCH  CONCERNED  IN  THE] 

ANNULMENT  OF  A  LAW  AS  IN  ITS  ENACTMENT.  / 

This  means  that  no  law  should  be  declared 
void  in  litigation  between  private  parties.  It 
means  that  where  a  law  is  questioned,  a  direct  t 
proceeding  should  be  brought  against  the  State 
and  the  same  consideration  should  be  given  as 
is  required  for  its  enactment.  ^tjmeansJJiat 
-the,  legislature  and  the  persons^jnstrumental 
^  hear- 


ing.  And  if  w^ild  .<jfigm_to  Jbeju&rollaEy  that 
J:he  statute  should  be  effective  as  law  until 
annulled  in  such  a  proceeding. 

Any  political  innovation  is  the  more  likely 
to  succeed  if  it  runs  along  familiar  lines.  My 
plan  has  at  least  the  merit  of  proposing  no 


32  THE  JUDICIAL  VETO 

radical  changes  in  existing  methods.  I  believe 
that  the  courts  are  competent  to  construe  our 
constitutions  and  that  they  are  the  best  tri- 
bunals we  could  devise  for  that  purpose.  I 
believe  also  that  we  have  conceded  to  them  so 
long  and  so  freely  the  power  of  judicial  review 
that  we  are  as  much  bound  to  recognize  their 
prerogative  as  if  it  were  expressly  mentioned 
in  our  constitutions.  What  we  should  seek  to 
attain  is  merely  a  different  method  of  review 
—  one  which  does  not  relieve  the  legislature  of 
its  responsibility  for  passing  bad  laws;  one 
which  focuses  deliberate,  responsible,  and  un- 
prejudiced attention  upon  constitutional  prin- 
ciples when  the  issue  is  presented  for  review; 
one  which  eliminates  private  interests  and 
gives  the  State  representation  at  the  hearing, 
with  the  power  to  present  both  argument  and 
information.  I  strongly  approve  also  of  re- 
quiring substantial  unanimity  on  the  part  of  the 
judges.  And  finally  I  would  suggest  a  time  limit 
within  which  the  review  may  be  applied  for. 

Although  a  formal  constitutional  amend- 
ment would  doubtless  be  required  to  give  it 
effect,  what  I  propose  is  little  more  than  a 
change  of  procedure.  In  brief  and  untechnical 
language  it  is  this: 


JUDICIAL  REVIEW  33 

Every  statute  duly  enacted  should  have  the  force  of 
law.  If  under  its  operation  a  party  considers  himself 
aggrieved,  he  may  on  notice  to  the  attorney  general 
apply  to  a  court  of  general  jurisdiction  for  a  review 
of  its  constitutionality.  If  he  can  establish  actual 
damage,  the  judge  shall  certify  that  fact  to  the  highest 
court  of  the  State  which  shall  thereupon  set  an  early 
date  for  a  hearing  on  the  validity  of  the  statute.  The 
State  shall  be  represented,  and  notice  shall  be  given  to 
the  members  of  the  legislature  which  passed  the  act, 
and  to  the  public.  All  persons  interested  shall  have 
the  right  to  intervene  and  argue,  and  untrammeled 
by  technical  rules  of  evidence,  to  present  the  reasons 
for  the  legislation.  If  the  court  shall,  after  such  hear- 
ing, with  substantial  unanimity  find  the  statute 
unconstitutional,  it  shall  certify  its  decision  to  the 
secretary  of  state,  and  the  statute  shall,  from  that 
date  only  and  to  the  extent  indicated  by  the  decision, 
cease  to  be  law.  The  aggrieved  plaintiff  shall  then 
be  relegated  to  a  court  of  claims  to  prove  the  amount 
of  his  injury  and  shall  have  judgment  against  the 
State  for  the  damage  he  has  suffered.  All  other  per- 
sons who  have  meanwhile  been  aggrieved  shall  also  be 
compensated  in  like  manner;  but  no  claim  shall  be 
made  after  ten  years  from  the  time  when  the  statute 
takes  effect. 

The  principal  effect  of  this  method  of  review 
is  to  place  the  responsibility  where  it  belongs 
—  on  the  State.  The  legislature,  in  the  first 
place,  will  know  when  it  enacts  a  statute  that 


34  THE  JUDICIAL  VETO 

that  statute  will  be  given  effect  for  a  limited 
time  at  least,  and  if  it  seriously  disturbs  vested 
interests,  there  will  be  a  substantial  bill  of 
damages  for  the  State  to  settle  in  the  event  of 
its  annulment.  The  legislature,  therefore,  will 
be  cautious  in  running  the  risk  of  unconsti- 
tutionally. It  will,  on  the  other  hand,  have 
the  assurance  of  a  fair  hearing,  an  opportunity 
to  present  its  evidence,  and  to  tell  the  court 
why  it  believed  the  statute  valid  when  it  con- 
sidered that  question  in  its  own  debate*. 

The  court  will  realize  that  it  has  a  heavy 
responsibility  and  will  quickly  abandon  the 
flippant  tone  that  has  crept  into  recent  judi- 
cial utterances.12  It  will,  on  overthrowing  the 
law,  subject  the  State  to  a  bill  of  damages  of 
unknown  weight.  It  will  be  annulling  an  exist- 
ing and  effectual  law  instead  of  destroying  a 
mere  phantom  of  words  and  leaving  matters 
as  if  the  statute  never  had  been  passed. 

The  court  will,  moreover,  have  no  issue 
before  it  except  the  single  question  of  uncon- 
stitutionality.  Its  attention  will  be  not  dis- 
tracted by  a  complicated  record,  nor  its  sym- 
pathies stirred  by  a  case  of  hardship.  It  will 
,  base  its  decision  on  actual  facts  instead  of  legal 
fictions.  It  will  have  less  occasion  to  utter 


JUDICIAL  REVIEW  35 

obiter  remarks  about  unconstitutional  law. 
If  under  those  conditions  it  still  finds  a  stat- 
ute unconstitutional,  its  judgment  will  carry 
much  greater  weight  with  the  public. 

The  plaintiff  will  have  to  wait  until  he  has 
been  damaged.  No  one  will  be  allowed  to  cry 
out  until  he  has  been  hurt.  The  practice  of 
testing  statutes  by  injunctions  will  vanish  — 
and  in  fact  many  intended  suits  will  never  be 
brought,  because  actual  experience  under  the 
statute  will  demonstrate  that  there  has  been 
no  damage. 

The  plaintiff,  again,  will  be  pitted  against 
the  State.  He  can  neither  "frame  up"  a  case 
nor  create  a  misleading  record,  as  is  so  easy 
to  do  in  the  course  of  private  litigation  ham- 
pered by  rules  of  practice  and  evidence.  On 
important  questions  he  will  meet  adversaries 
equal  in  enthusiasm  and  ability.  He  will  have 
to  fight  fairly  and  in  th«  open. 

That  this  plan  is  illogical  I  freely  concede,  j 
nor  am  I  concerned  to  defend  it  by  a  critique 
of  pure  reason.  We  have  tried  the  logical 
method  and  have  found  that  it  works  so  badly 
that  if  we  stick  to  logic  the  result  will  prob- 
ably to  be  vest  the  final  decision  either  in  the 
legislature  or  hi  popular  vote.  That  the  plan 


36  THE  JUDICIAL  VETO 

will  expose  the  State  to  unlimited  claims  for 
damages  is  not  necessarily  an  objection.  A 
statute  is,  in  the  first  place,  the  action  of  the 
State;  its  full  effect  ought  to  be  considered 
before  it  is  adopted,  and  when  once  the  respon- 
sibility is  assumed,  the  State  ought  to  retain 
it.  If  there  has  been  a  mistake,  it  is  the  State 
and  not  its  officers  or  private  individuals  who 
ought  to  pay  the  penalty.  That  the  appellate 
court  will  have  to  give  time  to  hearings  and 
to  decide  on  facts  that  are  not  provable  under 
the  common  law  rules  of  evidence,  —  though 
they  may,  of  course,  be  produced  under  oath 
and  cross-examination,  —  I  regard  as  an  un- 
qualified advantage.  It  will  emphasize  the 
fact  that  legislation  is  at  issue  and  will  give  a 
truer  basis  for  decision  than  can  possibly  be 
attained  from  private  litigation. 

But  will  it  work? 

It  is  not  possible  to  kiiow  in  advance  whether 
any  political  experiment  will  work.  The  best 
we  can  do,  after  stating  our  reasons  for  propos- 
ing the  change,  is  to  try  to  find  an  analogy 
and  see  if  we  can  learn  any  lesson  from  it.  The 
test  that  suggests  itself  is  the  attitude  of  the 
courts  in  that  class  of  cases  most  nearly  re- 
sembling constitutional  questions  as  they  would 


JUDICIAL  REVIEW  37 

be  presented  under  my  plan.  Is  there  now  any 
class  of  cases  where  the  constitutionality  of 
the  statute  involved  naturally  impresses  the 
court  as  a  matter  of  grave  concern  to  the  State, 
where  the  controversy  takes  the  form  of  an 
issue  between  the  public  and  one  disgruntled 
individual,  and  where  vested  rights  and  due 
process  of  law  are  unconsciously  subordinated 
to  the  public  welfare? 

It  occurred  to  me  that  the  tax  laws  may 
furnish  such  an  example.  The  responsibility 
for  interfering  with  a  system  of  taxation  is 
obvious.  No  matter  how  the  question  may 
arise,  the  court  can  hardly  escape  the  knowl- 
edge that  to  declare  a  tax  law  invalid  may 
throw  the  state  machinery  into  disastrous 
confusion.  Nor  is  there  much  temptation 
for  judges  to  tie  the  hands  of  the  legisla- 
ture so  firmly  that  the  State  will  be  unable 
to  obtain  from  whatever  source  it  can  find 
the  revenue  necessary  to  carry  on  the  govern^ 
ment. 

With  this  idea  in  mind,  and  without  any 
intimation  in  advance  of  what  the  results 
would  be,  I  made  an  analysis  of  the  constitu- 
tional decisions  in  the  State  of  New  York, 
which  I  submit  for  what  it  is  worth.  I  selected 


38  THE  JUDICIAL  VETO 

New  York  because  it  is  commercially  the  most 
important  State  in  the  Union,  because  it  is 
the  theater  of  a  vast  amount  of  litigation,  be- 
cause its  judicial  decisions  have  served  widely 
as  precedents  in  other  States,  and  because  its 
courts  have  interfered  with  a  free  hand  in  le- 
gislation. Whether  the  New  York  figures  are 
characteristic  of  other  States  I  do  not  know, 
though  it  might  be  instructive  to  pursue  the 
search  further  and  get  the  complete  story  for 
the  whole  United  States.  The  federal  courts, 
however,  are  not  on  the  same  footing  when 
construing  state  statutes;  for  they  have  no 
particular  concern  in  the  operation  of  the  state 
governments,  and  hence  have  a  much  weaker 
feeling  of  responsibility  in  deciding  their  va- 
lidity. 

So  many  difficulties  stand  in  the  way  of 
such  an  analysis  as  I  have  attempted  that  I 
at  once  disclaim  any  real  accuracy  in  my  fig- 
ures. For  instance,  it  is  often  a  matter  of  opin- 
ion whether  or  not  the  constitutionality  of  a 
statute  is  necessarily  involved  in  any  given 
case  —  whether,  though  discussed,  it  is  really 
decided.  Still  more  is  it  matter  of  opinion  how 
the  statutes  should  be  classified.13  I  venture 
to  say  that  no  two  men  would  get  exactly  the 


JUDICIAL  REVIEW 


39 


same  results  from  such  an  investigation  as  I 
have  made. 

I  offer  the  following  tabulation  only  as  a 
picture  of  what  exists.  It  has  been  made  in  a 
conscientious  effort  to  discover  the  truth,  and 
resembles,  I  trust,  a  photograph  rather  than 
an  impressionist  sketch. 


Statutes 
sustained 

Statutes 
overruled 

Total 
statutes 
construed 

Percentage 
overruled 

Administrative    

156 

48 

204 

23.5 

Elections  

12 

8 

20 

40.0 

Highways  and  Water- 
ways 

82 

32 

114 

28  0 

Judiciary,  Legislative, 
and  Military 

145 

59 

204 

290 

Local  and  Private  
Public  Service  

39 
77 

25 
25 

64 
102 

39.0 
24.5 

Social  and  Economic.. 
Taxes  and  Assessments 

185 

84 

69 
19 

254 
103 

27.0 
18.0   • 

Total  

780 

285 

1065 

*270   4 

Taxes  

56 

4 

60 

70 

Assessments  .  .  . 

28 

15 

43 

35  0 

The  figures  are  suggestive  in  more  aspects^ 
than  one;  but  passing  the  startling  fact  that, 
over  one  quarter  of  all  the  statutes  challenged  4 
have  been  overruled,  I  call  attention  only  to 
this:  that  the  percentage  of  overruled  statutes, 
relating  to  "Taxes  and  Assessments"  is  the 
lowest  of  any  group,  and  well  below  the  aver- 


40  THE  JUDICIAL  VETO 

age,  although  the  number  of  statutes  con- 
strued is  greater  than  those  in  several  other 
groups.  But  there  is  an  important  distinction 
between  a  tax  and  an  assessment;  and  if  we 
analyze  our  figures  still  further  we  find  the 
percentage  of  "Tax"  laws  overruled  falling 
to  7,  as  against  an  average  of  27  and  a  maxi- 
mum of  40.  "Assessments"  alone  with  a  per- 
centage of  35,  then  approximate  the  39  per  cent 
of  "Local  and  Private"  statutes,  to  which 
they  are  rather  closely  related. 

With  all  the  explanation  that  may  be  made, 
I  do  not  believe  that  these  figures  are  acci- 
dental. Neither  can  they  be  accounted  for  as 
showing  exceptional  care  and  wisdom  on  the 
part  of  the  legislature  —  the  variations  are 
too  great  for  that.  If  they  show  anything, 
they  show  a  marked  tendency  on  the  part  of 
the  judiciary  to  "go  slow"  when  they  feel 
genuine  responsibility  without  economic  or 
political  prejudice. 

If  all  constitutional  questions  could  be 
brought  before  them  in  the  same  solemn,  dis- 
passionate way,  it  seems  reasonable  to  expect 
from  them  a  similar  attitude  toward  all  legis- 
lation. If  that  result  were  attained,  it  would 
be  highly  satisfactory.  Until  our  standards  of 


JUDICIAL  REVIEW  41 

legislation  have  considerably  improved,  we 
shall  not  have  much  cause  for  complaint  if 
no  more  than  seven  per  cent  of  the  statutes 
doubtful  enough  to  be  seriously  challenged 
are  held  unconstitutional. 


CHAPTER  III 

ANNULMENT  OF  LEGISLATION  BY  THE 
SUPREME  COURT, 

THE  United  States  Supreme  Court  assumes 
to  decide  the  constitutionality   of  acts 
of  Congress,  and  its  decisions  are  accepted  as 
final.    What  is  the  origin  of  this  important 
power? 

The  question,  it  may  be  argued,  is  purely 
academic.  The  authority  of  the  Supreme 
Court  is  so  well  recognized  that  its  source  is 
a  matter  of  no  importance.  While  that  argu- 
ment is  largely  true,  it  is  also  true  that  the 
judicial  review  of  legislation  is  so  far  from  satis- 
factory in  its  results  that  changes  of  method 
are  unquestionably  impending,1  and  history 
can  assist  us  in  attaining  a  proper  perspective 
for  the  study  of  the  political  problem  that 
confronts  us  to-day.  The  historical  study  is 
interesting  also  in  showing  that  our  forefathers 
in  their  discussions  by  no  means  adopted  the 
viewpoint  of  most  of  the  modern  writers  —  of 
assuming  that  whenever  a  law  is  declared 
unconstitutional,  the  court  is  always  right  and 


ANNULMENT  OP  LEGISLATION      43 

is  performing  a  public  service  in  so  deciding. 
And  more  important  still,  it  suggests  the 
true  theory,  not  clearly  formulated  then  and 
wholly  overlooked  in  recent  discussion,  that 
constitutionality  is  a  political  and  not  a  legal 
question. 

Investigation  in  this  field  has  already  been 
pursued  by  several  able  writers.  In  1911  2 
appeared  several  magazine  articles,  contend- 
ing on  historical  grounds  that  the  action  of  the 
courts  was  substantially  "usurpation";  while 
in  1912  3  were  published  two  books,  which, 
on  the  basis  of  careful  and  scholarly  research, 
reached  an  opposite  conclusion.  In  view  of  the 
thoroughness  with  which  the  ground  has  been 
covered,  it  may  be  rash  to  enter  the  lists  with 
further  argument;  yet  the  interest  of  the  topic 
justifies  the  effort  to  throw  more  light  on  it. 
Several  phases  of  the  subject  tempt  discussion, 
but  for  the  purposes  of  a  single  paper  I  must 
confine  myself  strictly  to  an  attempt  to  answer 
the  one  question  — gj>id  our  forefathers  who 
a^PjDted  the^ _Cgnstit^ 
federal  Supreme  Court  the  power  conclusively 

^to  determine  the  cpnstJt.iitJonfl.lify  of  acts  of 
Congress? 

In  my  judgment  they  did  not. 


44  THE  JUDICIAL  VETO 

As  I  reach  this  conclusion  upon  much  the 
same  evidence  as  is  cited  by  Professor  Beard 
in  his  interesting  study,  it  is  necessary  to  define 
the  question  with  some  care,  and  to  point  out 
specifically  the  differences  of  opinion  between 
us.  In  the  first  place,  Professor  Beard  dis- 
cusses primarily  the  attitude  of  the  makers  of 
the  Constitution  (p.  1),  while  I  am  concerned 
primarily  with  those  who  adopted  it.  But  I  am 
also  inclined  to  question  his  demonstration 
of  the  intent  of  the  makers,  especially  his  con- 
tention tfaajt  seventeen  of  Ihem  Jldedared. 
..directly  or  indirectly,  /prejudicial  _control " 
(p.  17),  and  that  "Iwenty-five  members j)f  the 

fl± 

trol  "  (p.  51). 
If  we  could  discover  the  intent  of  the  several 
conventions  that  ratified  the  Constitution,  we 
should  have  a  guide  to  the  meaning  that  his- 
torically ought  to  be  attached  to  it;  and  if  we 
found  that  a  majority  of  all  the  conventions 
understood  the  article  relating  to  the  judiciary 
to  the  same  effect,  and  intended  the  same  sig- 
nificance to  be  attached  to  their  respective 
actions,  —  whether  ratifying  without  quali- 
fication, or  ratifying  and  at  the  same  time 
urging  amendment,  or  finally,  rejecting,  —  we 


ANNULMENT  OF  LEGISLATION      45 

should  have  the  most  cogent  argument  pos- 
sible on  its  proper  interpretation.  Unfortu- 
nately it  is  impossible  to  determine  the  intent 
of  the  conventions  with  any  such  exactness, 
partly  because  there  is  no  known  record  of 
the  debates  in  some  of  them,  and  partly  be- 
cause the  question  was  not  presented  in  such 
a  way  as  to  get  any  clear  and  unequivocal 
answer. 

In  trying  to  discover  the  intent  of  our  fore- 
fathers who  adopted  the  Constitution,  I  shall 
begin  with  the  opinions  of  the  members  of 
the  constitutional  convention,  reviewing  the 
ground  covered  by  Professor  Beard;  I  shall 
then  discuss  the  debates  and  proceedings  of 
the  several  ratifying  conventions,  in  the  light 
of  contemporary  discussion,  touching  on  the 
ground  covered  by  Professor  McLaughlin;  and 
finally  I  shall  analyze  the  judiciary  act  of  1789, 
as  a  contemporary  interpretation  by  men 
fresh  from  the  controversy  in  which  most  of 
them  had  engaged.  Beyond  that  I  do  not  find 
much  significance  in  either  legal  or  political 
action.  It  seems  to  me  that  the  Virginia  and 
Kentucky  Resolutions  and  their  reception 
indicate  the  politics  of  the  moment,  rather 
than  any  fixed  philosophical  views  about  the 


46  THE  JUDICIAL  VETO 

method  of  determining  the  constitutionality 
of  laws; 4  and  that  Chief  Justice  Marshall's 
opinion  in  the  case  of  Marbury  v.  Madison  5 
was  a  shrewd  political  manifesto,  rather  than 
a  logical  foundation  for  the  decision  of  that 
highly  technical  case. 

A  brief  summary  of  my  argument  will  make 
my  position  clearer.  Conceding  that  the  theory 
of  a  judiciary  assuming  to  declare  statutes 
to  be  unconstitutional  and  void  was  in  accord 
with  the  political  philosophy  of  the  period, 
was  brought  to  the  attention  of  the  constitu- 
tion-makers as  practicable,  and  was  favored 
by  some  of  the  most  influential  members  of 
the  convention  as  a  deliberate  policy  —  yet 
the  evidence  that  I  have  been  able  to  gather 
persuades  me  that  there  was  in  the  convention 
itself  great  difference  of  opinion  as  to  the  best 
policy  to  be  adoptee};  that  the  question  was 
intentionally  left  open;  that  upon  the  submis- 
sion of  the  Constitution  for  ratification  a  vig- 
orous objection  to  the  power  of  the  federal 
judiciary  was  expressed,  especially  in  the  most 
important  States;  that  the  jealousy  of  federal 
^power  crystallized  into  the  Tenth  Amend- 
~~  ment,  one  of  the  effects  of  which  was  intended 
vto  be,  and  logically  was,  to  deprive  the  fed- 


ANNULMENT  OF  LEGISLATION      47 

eral  courts  of  the  power  of  constitutional  re- 
view; and  that  this  limitation  was  recognized 
and  applied  in  the  judiciary  act  of  1789,  by 
leaving  this  power  to  the  States.  If  my  reading 
of  the  evidence  is  correct,  it  follows  that  the 
people  of  the  original  States  did  not  intend 
to  give  the  federal  Supreme  Court  the  power 
of  annulling  acts  of  Congress  on  the  ground  of 
unconstitutionality. 

The  Intent  of  the   Constitutional   Convention 

Accepting  Professor  Beard's  list  of  twenty- 
five  as  representing  the  active  and  influential 
members  of  the  constitutional  convention,  let 
us  first  analyze  his  division  of  them  into 
those  "who  directly  or  indirectly  supported  the 
doctrine  of  judicial  control"  and  those  who  did 
not  regard  judicial  control  as  "a  normal  judi- 
cial function." 

I  do  not  intend  to  repeat  the  evidence  he  has 
so  fully  and  fairly  collated  from  Farrand,  El- 
liot, and  other  sources;  but  it  will  make  the 
argument  clearer  to  reproduce  his  list,  with 
the  names  in  italics,  as  printed  by  him,  to 
indicate  the  seventeen  who,  as  he  concludes, 
"declared,  directly  or  indirectly,  for  judicial 
control."  His  list  is  as  follows  (p.  17) : 


48  THE  JUDICIAL  VETO 


Blair 
Butler 
Dayton 
Dickinson 
Ellsworth 
Franklin 
Gerry 
Gorham 
Hamilton 

Johnson 
King 
Madison 
Martin,  L. 
Mason 
Morris,  G. 
Morris,  R. 
Paterson 

Pinckney,  Chas. 
Pinckney,  C.  C. 
Randolph 
Rutledge 
Sherman 
Washington 
Williamson 
Wilson 

For  purposes  of  comparison  I  repeat  the 
list,  leaving  in  italics  those  who  from  first  to 
last  favored  judicial  control,  putting  in  small 
capitals  those  who  disapproved,  and  leaving 
in  lower  case  the  doubtful  and  non-committal 
ones.  I  hasten  to  add  that  my  list,  like  Pro- 
fessor Beard's,  is  only  tentative;  and  I  may 
express  also  my  doubt  of  the  possibility  of 
ever  reaching  a  final  conclusion,  not  only  be- 
cause the  evidence  is  slight,  but  also  because 
of  the  probability  that  some  of  those  who  spoke 
or  wrote  on  the  subject  were  not  altogether 
clear  in  then-  own  minds.  The  course  of  the 
debate  in  which  the  speaker  was  engaged  and 
the  politics  of  the  moment  seem  to  have  in- 
fluenced not  a  few  remarks  on  this  subject;  and 
it  is  probable  that  the  views  of  some  of  our 
forefathers  were  quite  unsettled.  With  these 
qualifications,  and  with  the  further  impor- 
tant distinction  that  it  is  the  final  view  of 


ANNULMENT  OF  LEGISLATION      49 

each  member,  as  shown  upon  or  immediately 
after  the  ratification  by  his  State  (between 
December,  1787,  and  October,  1789)  that  I 
seek  to  emphasize,  not  his  opinion  in  the  con- 
vention, my  revision  is  as  follows: 

Blair  JOHNSON  -  PINCKNEY,  CHAS.   •— 

Butler  King  Pinckney,  C.  C. 

Dayton  MADISON  -  Randolph 

Dickinson  MARTIN,  L.  -  Rutledge 

ELLSWORTH-  Mason  Sherman 

Franklin  Morris,  0.  WASHINGTON  "" 

Gerry  MORRIS,  R.  ~  Williamson 

Gorham  PATERSON  -  Wilson 
Hamilton 

JOHN  DICKINSON,  of  Delaware,  expressly 
declared  himself  in  the  convention  as  opposed 
to  the  "power  of  the  judges  to  set  aside  the 
law,"  but  "at  a  loss  what  expedient  to  substi- 
tute"; nevertheless  he  is  included  by  Professor 
Beard  as  one  of  the  seventeen  because  of  an 
argument  in  favor  of  the  ratification  of  the 
Constitution,  written  in  1788,  in  which  he 
accepts  the  theory  of  judicial  review.6  But 
in  the  same  paper  Dickinson  adds:7  "Consti- 
tutional properties  are  only,  as  has  been  ob- 
served at  the  beginning  of  this  letter,  parts 
in  the  organization  of  the  contributed  rights. 
As  long  as  those  parts  preserve  the  orders 
assigned  to  them  respectively  by  the  consti- 


50  THE  JUDICIAL  VETO 

tution,  they  may  so  far  be  said  to  be  bal- 
anced; but,  when  one  part,  without  being  suf- 
ficiently checked  by  the  rest,  abuses  its  power 
to  the  manifest  danger  of  public  happiness,  or 
when  the  several  parts  abuse  their  respective 
power  so  as  to  involve  the  commonwealth  in 
like  peril,  the  people  must  restore  things  to 
that  order  from  which  their  functionaries  have 
departed"  (italics  in  original). 

In  another  paper  in  the  same  series  he  in- 
quires: 8 

"What  bodies  are  there  in  Britain,  vested 
with  such  capacities  for  inquiring  into,  check- 
ing and  regulating  the  conduct  of  national 
affairs,  as  our  sovereign  states?" 

It  would  seem  from  these  remarks  that  while 
Dickinson  appreciated  the  possibility  of  judi- 
cial review,  he  contemplated  also  direct  action 
by  the  people  and  intervention  by  the  States. 
Whether  he  at  any  time  approved  of  the  court's 
exercise  of  the  function  of  annulling  legislation 
seems  to  me  more  than  doubtful  in  view  of  his 
original  objection;  but  neither  am  I  convinced 
that  he  disapproved.  I  class  him,  therefore,  as 
doubtful. 

OLIVER  ELLSWORTH,  of  Connecticut,  did 
not  express  himself  in  the  federal  convention, 


ANNULMENT  OF  LEGISLATION      51 

but  in  the  state  convention  in  January,  1788, 
he  clearly  and  tersely  voiced  the  doctrine  of 
judicial  control  as  an  argument  in  favor  of  the 
Constitution.9  This,  it  will  be  observed,  was 
before  the  debates  in  Massachusetts,  the  Caro- 
linas,  Virginia,  and  New  York  had  disclosed 
the  strength  of  the  Anti-Federalist  sentiment. 
In  March,  1789,  Ellsworth  took  his  seat  in 
Congress  as  Senator  from  Connecticut,  and 
was  at  once  appointed  chairman  of  the  judi- 
ciary committee.  He  had  framed  the  judiciary 
bill  himself  and  was  active  both  in  committee 
and  on  the  floor  of  the  Senate,  as  appears  from 
Senator  Maclay's  Journal,  in  preserving  it  in 
a  form  satisfactory  to  himself.  As  sponsor 
for  the  bill  from  its  introduction  to  its  final 
passage,  he  is  fully  committed  to  its  principle 
of  reserving  the  judicial  review  of  legislation 
to  the  state  courts;  and  I,  therefore,  class  him 
as  disapproving  federal  judicial  control. 

ELBRIDGE  GERRY,  of  Massachusetts,  seems 
on  the  whole  to  have  accepted  the  theory  of 
judicial  review.  His  speeches  in  the  federal 
convention  in  1787  and  in  the  House  of  Repre- 
sentatives in  1789  are  quoted  fully  by  Professor 
Beard,  and  need  not  be  repeated.  Neverthe- 
less it  is  worthy  of  comment  that  he  refused 


52  THE  JUDICIAL  VETO 

to  sign  the  Constitution,  assigning  as  one  of 
his  reasons:  10  "My  principal  objections  to  the 
plan  are  .  .  .  that  the  judicial  department  will 
be  oppressive." 

He  campaigned  actively  against  the  ratifi- 
cation of  the  Constitution,  publishing  in  1788 
"Observations  on  the  New  Constitution;  By 
a  Columbian  Patriot,"  in  which  he  expressed 
his  dread  of  the  judiciary  more  fully  as  fol- 
lows: n 

"But  I  leave  the  field  of  general  censure  on 
the  secrecy  of  its  birth,  the  rapidity  of  its 
growth,  and  the  fatal  consequences  of  suffering 
it  to  live  to  the  age  of  maturity,  and  will  par- 
ticularize some  of  the  most  weighty  objections 
to  its  passing  through  this  continent  in  a  gi- 
gantic size.  .  .  . 

"3.  There  are  no  well  defined  limits  of  the 
Judiciary  Powers;  they  seem  to  be  left  as  a 
boundless  ocean,  that  has  broken  over  the 
chart  of  the  Supreme  Lawgiver,  'thus  far  shall 
thou  go  and  no  further*  and  as  they  cannot  be 
comprehended  by  the  clearest  capacity,  or  the 
most  sagacious  mind,  it  would  be  an  Hercu- 
lean labour  to  attempt  to  describe  the  dangers 
with  which  they  are  replete." 

If  he  was  sincere  in  this  argument,  it  is  diffi- 


ANNULMENT  OF  LEGISLATION      53 

cult  to  believe  that  he  approved  of  giving  to  the 
Supreme  Court  the  highest  power  imaginable 
—  that  of  annulling  an  act  of  Congress;  —  yet 
his  speeches  the  following  year  on  the  Presi- 
dent's power  of  removal  show  none  of  the  ap- 
prehension he  expressed  during  the  struggle 
for  ratification.12 

JAMES  MADISON,  of  Virginia.  Madison's 
views  are  discussed  so  fully  and  with  such  lib- 
eral quotations  by  Professor  Beard  that  I  have 
nothing  new  to  add.  I  can  only  say  that  the 
extracts  he  gives  are  convincing  to  my  mind 
that  Madison  strongly  disapproved  the  theory 
that  the  federal  judges  should  have  power 
conclusively  to  determine  the  constitutionality 
of  acts  of  Congress.  I  may  mention  particularly 
the  following: 13 

"In  the  state  constitutions  and  indeed  in 
the  federal  one  also,  no  provision  is  made  for 
the  case  of  a  disagreement  in  expounding  them 
[the  laws],  and  as  the  courts  are  generally  the 
last  making  the  decision,  it  results  to  them, 
by  refusing  or  not  refusing  to  execute  a  law, 
to  stamp  it  with  its  final  character.  This  makes 
the  judiciary  department  paramount  in  fact 
to  the  legislature,  which  was  never  intended 
and  can  never  be  proper." 


54  THE  JUDICIAL  VETO 

Madison's  earnest  and  repeated  efforts  to 
provide  for  a  council  of  revision  seem  to  me 
to  show  a  consistent  desire  to  avoid  leaving 
to  the  court  any  question  of  annulment  of 
legislation.  He  also  took  the  lead  in  the  House 
of  Representatives  in  1789  in  securing  the 
passage  of  the  first  ten  amendments,  which, 
as  I  argue,  remove  from  the  Supreme  Court 
to  the  States  the  authority  to  annul  acts  of 
Congress. 

LUTHER  MARTIN,  of  Maryland,  refused  to 
sign  the  Constitution  and  fought  actively 
against  its  ratification.  He  delivered  to  the 
legislature  of  Maryland,  November  29,  1787, 
an  address  14  which  was  one  of  the  most  com- 
plete and  able  arguments  made  by  any  of  the 
Anti-Federalists.  He  argues,  as  a  reason  for 
rejecting  the  Constitution: 

"Whether,  therefore,  any  laws  or  regula- 
tions of  the  congress,  or  any  acts  of  its  Presi- 
dent or  other  officers,  are  contrary  to  or  not 
warranted  by  the  Constitution,  rests  only  with 
the  judges,  who  are  appointed  by  Congress> 
to  determine;  by  whose  determination  every 
State  must  be  bound." 

His  view  is  indicated  more  fully  in  his 
"Reply  to  the  Landholder,"  dated  March 


ANNULMENT  OF  LEGISLATION      55 

19,  1788, 15  where  he  describes  his  effort  in  the 
federal  convention  to  have  all  questions  of 
the  constitutionality  of  laws  decided  by  the 
state  courts. 

"When  this  clause  ['that  the  legislative  acts 
of  the  United  States  .  .  .  shall  be  the  supreme 
law  of  the  respective  States  .  .  .  anything  in 
the  respective  laws  of  the  individual  States 
to  the  contrary  notwithstanding']  was  intro- 
duced, it  was  not  established  that  inferior 
continental  courts  should  be  appointed  for 
trial  of  all  questions  arising  on  treaties  and  on 
the  laws  of  the  general  government,  and  it  was 
my  wish  and  hope  that  every  question  of  that 
kind  would  have  been  determined  in  the  first 
instance  in  the  courts  of  the  respective  states; 
had  this  been  the  case,  the  propriety  and  neces- 
sity that  treaties  duly  ratified,  and  the  laws 
of  the  general  government,  should  be  binding 
on  the  state  judiciaries,  which  were  to  decide 
upon  them,  must  be  evident  to  every  capacity, 
while  at  the  same  time,  if  such  treaties  or  laws 
were  inconsistent  with  our  constitution  and 
bill  of  rights,  the  judiciaries  of  this  state  would 
be  bound  to  reject  the  first  and  abide  by  the 
last,  since  in  the  form  I  introduced  the  clause, 
notwithstanding  treaties  and  the  laws  of  the 


56  THE  JUDICIAL  VETO 

general  government  were  intended  to  be  supe- 
rior to  the  laws  of  our  State  government,  where 
they  should  be  opposed  to  each  other,  yet  that 
they  were  not  proposed  nor  meant  to  be  supe- 
rior to  our  constitution  and  bill  of  rights." 

This  scheme  of  Martin's  would  have  made 
the  state  constitutions  superior  to  the  federal 
laws,  and  it  is  the  clash  between  the  two  that 
he  is  discussing;  but  his  proposal,  especially 
in  the  absence  of  inferior  federal  courts,  would 
have  left  questions  of  the  validity  of  federal 
laws,  under  the  federal  Constitution  also,  to 
the  determination  of  state  courts,  as  appears 
from  the  words  I  have  italicized. 

GEORGE  MASON,  of  Virginia,  is  counted  as 
favoring  judicial  control  because  of  a  speech 
in  the  Virginia  convention  in  June,  1788,  in 
which  he  said: 

"When  this  matter  comes  before  the  federal 
judiciary,  they  must  determine  according  to 
this  constitution.  ...  As  an  express  power  is 
given  to  the  federal  court  to  take  cognizance 
of  such  controversies,  and  to  declare  null  all 
ex  post  facto  laws,  I  think  gentlemen  must  see 
there  is  danger,  and  that  it  ought  to  be  guarded 
against."  16 

Mason,  like  Gerry,  refused  to  sign  the  Con- 


ANNULMENT  OF  LEGISLATION      57 

stitution  and  argued  vigorously  against  its 
ratification.  In  fact,  the  speech  above  quoted 
was  delivered  not  in  favor  of  the  Constitution, 
but  in  opposition  to  it.  With  the  exception  of 
these  remarks,  his  whole  attitude  seems  ad- 
verse to  vesting  such  power  in  the  judiciary. 
In  the  constitutional  convention  he  favored 
Madison's  plan  for  a  council  of  revision;  in 
October,  1787,  he  wrote  Washington17  object- 
ing to  the  prohibition  against  ex  post  facto  laws 
because  "there  never  was,  nor  can  be,  a  legis- 
lature, but  must  and  will  make  such  laws, 
when  necessity  and  the  public  safety  require 
them,  which  will  hereafter  be  a  breach  of  all  the 
constitutions  in  the  union,  and  afford  precedents 
for  other  innovations"  —  evidently  not  then 
relying  on  the  courts  to  check  such  legisla- 
tion; and  he  is  credited  with  the  authorship 
of  the  Virginia  amendments  intended  to  limit 
the  power  of  the  federal  judiciary.18 

His  approval  of  the  theory  of  judicial  con- 
trol seems  on  the  whole  to  rest  on  a  slender 
foundation. 

WILLIAM  PATERSON,  of  New  Jersey.  On 
the  strength  of  a  charge  to  the  jury  in  1795 
delivered  by  Paterson  as  circuit  judge  in 
the  case  of  Van  Home's  Lessee  v.  Dorrance, 


58  THE  JUDICIAL  VETO 

2  Dallas,  304,  he  is  listed  by  Professor  Beard 
among  the  seventeen.  The  remarks  quoted 
are  broad  enough  to  justify  this  classification, 
but  they  lose  their  significance  when  the  cir- 
cumstances of  the  case  are  considered.  That 
case  was  brought  in  the  federal  court,  appar- 
ently as  a  controversy  between  citizens  of 
different  States,  and  the  question  was  whether 
a  statute  of  Pennsylvania  was  valid  under  the 
Pennsylvania  constitution.  Neither  the  Con- 
stitution of  the  United  States  nor  any  act  of 
Congress  was  relied  on  by  either  party;  nor 
did  it  appear  that  the  Pennsylvania  statute  had 
ever  been  construed  by  the  state  court.  Hence 
there  can  be  no  positive  inference  that  Pater- 
son  believed  that  the  federal  Supreme  Court 
should  have  the  power  conclusively  to  deter- 
mine the  constitutionality  of  acts  of  Congress. 
On  the  other  hand,  he  was  in  1789  a  mem- 
ber of  the  Senate  committee  which  framed  the 
judiciary  bill,  and  as  Senator  from  New  Jersey 
he  voted  for  it.  If,  as  I  shall  endeavor  to  show, 
this  statute  placed  the  authority  to  annul 
unconstitutional  federal  statutes  exclusively 
in  the  States,  then  Paterson  must  be  counted 
as  disapproving  the  exercise  of  that  power  by 
the  federal  courts. 


ANNULMENT  OF  LEGISLATION      59 

CHARLES  PINCKNEY,  of  South  Carolina. 
Charles  Pinckney  did  not  express  himself  in  the 
federal  convention,  but  in  1799  he  wrote: 19 

"On  no  subject  am  I  more  convinced,  than 
that  it  is  an  unsafe  and  dangerous  doctrine 
in  a  republic,  ever  to  suppose  that  a  judge 
ought  to  possess  the  right  of  questioning  or 
deciding  upon  the  constitutionality  of  treaties, 
laws,  or  any  act  of  the  legislature.  It  is  placing 
the  opinion  of  an  individual,  or  of  two  or  three, 
above  that  of  both  branches  of  Congress,  a 
doctrine  which  is  not  warranted  by  the  con- 
stitution, and  will  not,  I  hope,  long  have  any 
advocates  in  this  country." 

EDMUND  RANDOLPH,  of  Virginia,  refused  to 
sign  the  Constitution.  He  set  forth  his  reasons 
in  a  long  letter  to  the  speaker  of  the  house  of 
delegates  in  which  he  writes :  *° 

"I  should  now  conclude  this  letter,  which  is 
already  too  long,  were  it  not  incumbent  on 
me,  from  having  contended  for  amendments, 
to  set  forth  the  particulars,  which  I  conceive 
to  require  correction.  ...  8.  In  limiting  and 
defining  the  judicial  power." 

As  a  member  of  the  Virginia  convention,  he 
argued: 21 

"Can  congress  go  beyond  the  bounds  pre- 


60  THE  JUDICIAL  VETO 

scribed  in  the  Constitution?  Has  congress  a 
power  to  say  that  she  [Virginia]  shall  pay  fifteen 
parts  out  of  sixty-five  parts  [of  a  direct  tax]? 
Were  they  to  assume  such  a  power  it  would 
be  a  usurpation  so  glaring,  that  rebellion  would 
be  the  immediate  consequence." 

By  December,  1790,  however,  he  seems  to 
have  lost  his  dread  of  the  federal  judiciary. 
At  that  date  he  reported  to  Congress  a  criti- 
cism of  the  judiciary  act  of  1789  and  a  draft 
statute  which  would  have  immensely  increased 
the  jurisdiction  of  the  federal  courts.  An  anal- 
ysis of  the  proposed  law  would  be  too  long  and 
too  technical  for  this  paper,  but  it  appears  to 
authorize  both  the  Circuit  Courts  and  the 
Supreme  Court  to  review  the  decisions  of 
state  courts  on  any  federal  question;  and  it  is 
significant  that  it  provides  that  both  District 
and  Circuit  Courts  "shall  have  original  juris- 
diction in  all  cases  of  law  and  equity  arising 
under  the  Constitution  of  the  United  States, 
the  laws  of  the  United  States,  and  treaties." 
In  commenting  on  the  proposed  statute,  Ran- 
dolph recognizes  the  right  of  state  courts  to 
invalidate  acts  of  Congress  as  unconstitutional, 
though  even  in  a  rather  lengthy  discussion  of 
the  subject  he  does  not  hint  that  federal  courts 


ANNULMENT  OF  LEGISLATION      61 

have  such  right.  His  argument,  however,  is 
based  on  the  contingency  of  the  statute  being 
actually  constitutional  and  the  decision  of  the 
state  court  merely  "refractory,"  22  and  does 
not  preclude  the  theory  of  federal  judicial 
review. 

If  this  report  and  his  failure  to  argue  in  the 
Heyburn  case,23  in  1792,  that  the  judges  had 
no  power  to  declare  the  law  unconstitutional, 
indicate  a  change  of  heart  because  he  had  been 
appointed  attorney  general  and  was  anxious 
for  an  extension  of  power  of  the  machine  of 
which  he  had  become  part,  then  his  opinion 
ought  to  be  cited  from  the  earlier  date;  but 
on  the  evidence  before  me,  that  fact  must  re- 
main a  matter  of  surmise,  and  therefore,  I 
classify  him  as  doubtful. 

WILLIAM  JOHNSON,  of  Connecticut,  ROB- 
ERT MORRIS,  of  Pennsylvania,  and  GEORGE 
WASHINGTON.  For  precisely  the  reason  that 
Professor  Beard  concludes  that  these  three 
members  "understood  and  indorsed  the  doc- 
trine" of  judicial  review,  I  infer  that  while 
they  may  well  have  understood  it,  they  not 
only  did  not  indorse  it,  but  actually  disap- 
proved it.  The  only  evidence  is  the  support 
of  the  judiciary  act  of  1789  by  Johnson  and 


62  THE  JUDICIAL  VETO 

Morris  with  their  votes  in  the  Senate  and  by 
Washington  with  his  signature  as  President. 

JOHN  BLAIR,  of  Virginia,  ALEXANDER  HAM- 
ILTON, of  New  York,  RUFUS  KING,  of  Massa- 
chusetts, GOUVERNEUR  MORRIS,  of  Pennsyl- 
vania, HUGH  WILLIAMSON,  of  North  Carolina, 
and  JAMES  WILSON,  of  Pennsylvania,  com- 
mitted themselves  to  approval  of  judicial 
control.24  Gerry  should  be  included  with  this 
group  on  the  basis  of  his  more  frequent  and 
more  specific  utterances,  and  Mason  may  be 
added  for  similar  reasons. 

Taking  now  the  preliminary  census  of  the 
attitude  of  the  twenty-five  active  and  influ- 
ential members  of  the  constitutional  conven- 
tion, as  shown  from  1787  to  1789,  we  find: 
Favoring  judicial  control  by  the  Supreme  Court, 
Blair,  Gerry,  Hamilton,  King,  Mason,  G. 
Morris,  Williamson  and  Wilson,  8;  disapprov- 
ing of  such  control,  Ellsworth,  Johnson,  Madi- 
son, L.  Martin,  R.  Morris,  Paterson,  Chas. 
Pinckney  and  Washington,  8;  doubtful  or  non- 
committal^ Butler,  Dayton,  Dickinson,  Frank- 
lin, Gorham,  C.  C.  Pinckney,  Randolph,  Rut- 
ledge  and  Sherman,25  9. 

Turning  to  the  less  important  members, 
my  view  of  the  judiciary  act  of  1789  leads  me 


ANNULMENT  OF  LEGISLATION      63 

to  suggest  further  changes  in  Professor  Beard's 
grouping. 

William  Few,  of  Georgia,  George  Read,  of 
Delaware,  and  Caleb  Strong,  of  Massachu- 
setts, all  voted  for  the  statute;  in  addition, 
Few  and  Strong  were  members  of  the  judi- 
ciary committee  of  the  Senate,  which  intro- 
duced and  supported  the  bill.  Their  action 
in  so  doing  places  them,  for  reasons  just  stated, 
in  the  list  of  those  who  disapproved  federal 
judicial  review.  It  may  also  be  remarked  that 
Strong  failed  to  sign  the  Constitution. 

Richard  Bassett,  of  Delaware,  was  also  a 
member  of  the  Senate  judiciary  committee  and 
voted  for  the  statute,  thus  indicating  in  1789 
his  disapproval  of  federal  judicial  review.  His 
memorial  to  Congress  in  1802,  suggesting  that 
his  right  to  compensation  as  a  judge  appointed 
under  the  act  of  February  13,  1801,  (repealed 
March  8,  1802)  be  submitted  to  judicial  deci- 
sion, is  cited  as  evidence  of  the  contrary  atti- 
tude thirteen  years  later.  But  is  it?  Is  there 
not  a  suggestion  of  shrewd  personal  politics 
in  the  attempt  to  have  the  Republican  legis- 
lation subjected  in  some  extra-judicial  pro- 
ceeding to  the  examination  and  decision  of  the 
Federalist  bench?  And  in  any  case,  is  not 


64  THE  JUDICIAL  VETO 

Bassett's  proposal  evidence  rather  of  a  con- 
tinued disapproval  of  federal  judicial  review? 
His  suggestion  is  that  the  act  of  1802  is  uncon- 
stitutional and  that  Congress  take  steps  to 
have  it  so  declared.  That  is  the  very  opposite 
of  judicial  control;  it  is  decision  by  the  legis- 
lature itself  through  machinery  of  its  own 
invention.  Any  decision  by  the  judiciary  was 
to  be  merely  on  the  invitation  of  the  legisla- 
ture. If  Bassett  believed  that  the  judiciary 
independently  had  the  conclusive  determina- 
tion, why  did  he  not  get  his  question  into  court 
in  a  legally  initiated  action  or  proceeding,  as 
he  might  have  done  in  a  dozen  different  ways? 

Robert  Yates,  of  New  York,  withdrew  from 
the  federal  convention,  and  argued  and  voted 
against  the  Constitution  when  it  came  up  for 
ratification.  His  views  on  judicial  control  are 
fully  and  ably  expressed  in  the  "Brutus" 
letters,  referred  to  again  below.  That  he  re- 
garded it  as  a  logical  but  altogether  undesir- 
able deduction,  appears  from  the  whole  tenor 
of  his  argument,  summed  up  in  Letter  XV  26 
as  follows: 

"I  said  in  my  last  number,  that  the  supreme 
court  under  this  constitution  would  be  exalted 
above  all  other  powers  in  the  government,  and 


ANNULMENT  OF  LEGISLATION      65 

subject  to  no  control.  The  business  of  this 
paper  will  be  to  illustrate  this,  and  to  shew 
the  danger  that  will  result  from  it.  ... 

"There  is  no  control  above  them  that  can 
either  correct  their  errors  or  control  their  de- 
cisions. ..." 

George  Wythe,  of  Virginia,  Pierce  Butler, 
of  South  Carolina,  and  John  Langdon,  of  New 
Hampshire.  The  evidence  as  to  all  three  of 
these  members  seems  to  me  too  slight  to  jus- 
tify their  classification.  Wythe  did  not  sign 
the  Constitution;  and  in  the  Virginia  conven- 
tion he  was  chairman  of  a  committee  on  amend- 
ments, which  reported  a  set  of  proposals  for 
the  limitation  of  the  federal  judiciary  to  a 
supreme  court,  with  little  except  appellate 
jurisdiction,  and  inferior  courts  of  admiralty 
only.  His  opinion  six  years  earlier  in  a  case 
involving  only  a  state  law  must  be  considered 
in  the  light  of  his  .action  on  the  Constitution 
itself.  As  to  Butler  and  Langdon,  they  may 
have  had  a  score  of  reasons  for  voting  against 
the  judiciary  act;  I  do  not  feel  that  such  action 
is  indicative  of  a  view  either  in  favor  of  or 
against  judicial  control. 

As  to  William  Livingston,  of  New  Jersey, 
also,  the  evidence  is  very  meagre.  Professor 


66  THE  JUDICIAL  VETO 

Beard  infers  that  from  his  connection  with  the 
early  and  unreported  case  of  Holmes  v.  Walton, 
deciding  a  New  Jersey  statute  to  be  uncon- 
stitutional and  void  (1780),  he  shows  an  under- 
standing and  approval  of  the  doctrine  of  judi- 
cial review;  and  Mr.  Austin  Scott,  discussing 
that  case  in  the  American  Historical  Review,27 
writes  that  "Livingston,  as  governor  .  .  .  had 
shared  in  the  legislative  acquiescence  in  the 
decision  of  the  court."  In  fact  the  only  "ac- 
quiescence," was  the  passage  of  another  act 
on  the  same  subject,  in  1779,  before  the  court 
had  made  its  decision.  The  act  of  1779  was, 
however,  framed  to  meet  the  arguments  made 
on  constitutional  grounds,  and  perhaps  gives 
color  enough  to  Mr.  Scott's  conclusion  to  jus- 
tify the  classification  of  Livingston  among 
those  who  approved  of  judicial  control,  in  the 
absence  of  evidence  to  the  contrary. 

Abraham  Baldwin,  of  Georgia,  and  David 
Brearly,  of  New  Jersey,  also  appear  to  have 
favored  judicial  control.  The  evidence  is  a 
quotation  from  Baldwin,28  and  Brearly  }s  par- 
ticipation as  chief  justice  in  the  decision  of 
Holmes  v.  Walton. 

Gunning  Bedford,  of  Delaware,  John  F. 
Mercer,  of  Maryland,  and  Richard  Spaight,  of 


ANNULMENT  OF  LEGISLATION      67 

North  Carolina,29  showed  by  their  speeches 
that  they  were  opposed  to  judicial  control. 

The  final  count  thus  adds  to  those  in  favor 
of  judicial  control  the  names  of  Baldwin, 
Brearly  and  Livingston,  3,  making  a  total  of 
11;  to  those  against  judicial  control  it  adds 
Bassett,  Bedford,  Few,  Mercer,  Read,  Spaight, 
Strong  and  Yates,  8,  making  a  total  of  16;  and 
to  the  doubtful  it  adds  Butler,  Langdon  and 
Wythe,  3,  making  a  total  of  12.  If  we  add  to 
the  third  group  the  names  of  those  who  signed 
the  Constitution  but  have  not  been  mentioned 
thus  far  in  the  discussion,  we  shall  fairly  have 
disposed,  as  best  we  can,  of  all  members  of 
the  convention  entitled  to  consideration  in 
ascertaining  the  opinions  of  the  framers.  This 
silent  and  not  particularly  influential  group 
is  as  follows:  William  Blount,  of  North  Caro- 
lina; Jacob  Broom,  of  Delaware;  Daniel  Car- 
roll, of  Maryland;  George  Clymer  and  Thomas 
Fitzsimons,  of  Pennsylvania;  Nicholas  Gilman, 
of  New  Hampshire;  Jared  Ingersoll,  of  Penn- 
sylvania; Daniel  S.  Jenifer  and  James  Mc- 
Henry,  of  Maryland;  and  Thomas  Mifflin,  of 
Pennsylvania,  10;  making  the  total  for  the 
doubtful  and  non-committal  members,  22. 

This  uncertain  and  tentative  grouping  shows 


68  THE  JUDICIAL  VETO 

11  for  and  16  against  judicial  control  out  of 
48  members  who  either  signed  the  Constitu- 
tion or  took  a  fairly  active  part  in  its  making 
—  a  reasonably  even  division  of  opinion  when 
we  consider  the  meagreness  of  the  evidence 
on  which  we  are  obliged  to  rely.  It  accounts 
for  the  very  illuminating  letter  written  by 
Gouverneur  Morris,  the  draftsman  of  the  final 
version  of  the  Constitution,  in  1814,  in  which 
he  says  30  (italics  mine) : 

"MY  DEAR  SIR,  —  What  can  a  history  of 
the  Constitution  avail  towards  interpreting 
its  provisions?  This  must  be  done  by  com- 
paring the  plain  import  of  the  words  with  the 
general  tenor  and  object  of  the  instrument. 
That  instrument  was  written  by  the  fingers 
which  write  this  letter.  Having  rejected  re- 
dundant and  equivocal  terms,  I  believed  it  to 
be  as  clear  as  our  language  would  permit;  ex- 
cepting, nevertheless,  a  part  of  what  relates 
to  the  judiciary.  On  that  subject,  conflicting 
opinions  had  been  maintained  with  so  much 
professional  astuteness,  that  it  became  necessary 
to  select  phrases  which,  expressing  my  own 
notions,  would  not  alarm  others  nor  shock  their 
self-love;  and  to  the  best  of  my  recollection,  this 
was  the  only  part  that  passed  without  cavil." 


ANNULMENT  OF  LEGISLATION      69 

It  would  be  difficult  to  understand  Morris's 
allusion  to  "conflicting  opinions,"  if  on  the 
important  subject  of  judicial  review  of  legis- 
lation the  members  had  been  practically  unani- 
mous—  twenty-five  (including  all  the  active 
ones  who  expressed  themselves)  against  five 
(according  to  Professor  Beard's  final  list  — 
or  three,  if  we  exclude  Butler  and  Langdon); 
but  with  such  an  even  split  in  opinion  as  is 
indicated  by  my  list,  it  is  easy  to  understand 
that  tact  and  skill  in  selecting  phrases  be- 
came indispensable. 

Is  it  not  the  legitimate  inference  that  the 
power  of  judicial  control  was  neither  over- 
looked, nor  attempted  to  be  slipped  in  by  in- 
direct or  ambiguous  phrases,  but  that  it  was 
intentionally  omitted?  31 

The  Intent  of  the  Ratifying  Conventions 

To  get  a  correct  perspective  for  interpreting 
the  action  of  the  people  in  ratifying  the  Con- 
stitution, we  must  keep  in  mind  a  few  familiar 
facts  of  political  history. 

In  1787  the  thirteen  original  States,  having 
achieved  their  independence,  were  banded 
together  in  a  loose  confederation.  Although 
the  Articles  of  Confederation  had  proved  to- 


70  THE  JUDICIAL  VETO 

tally  inadequate  to  provide  an  efficient  cen- 
tral government,  the  Philadelphia  convention 
was  organized  merely  to  revise  those  articles, 
and  the  authority  of  some  of  its  members  was 
in  terms  limited  to  such  action.32  The  people 
as  a  whole  were  by  no  means  prepared  for  the 
creation  of  a  vigorous  central  government. 
Apart  from  local  pride  and  mutual  jealousy, 
questions  of  unequal  practical  advantage  made 
the  favorable  reception  of  the  new  plan  a  mat- 
ter of  the  greatest  uncertainty.  The  smaller 
States  could  be  counted  upon  to  support  a 
centralized  government  which  would  remove 
restrictions  on  interstate  trade;  but  the  power- 
ful States  of  Virginia,  Massachusetts,  Penn- 
sylvania and  New  York  were  offered  less  ob- 
vious advantages,  and  yet  without  the  support 
of  all  of  them  the  new  Union  could  hardly  be 
expected  to  be  a  success.  Moreover  the  Con- 
stitution was  offered  for  ratification,  to  be 
accepted  or  rejected  as  a  whole;  and  there  was 
little  occasion  for  academic  discussion  of  detail. 
The  big  question  was  whether  "the  grinding 
necessity"  of  the  political  situation  was  stern 
enough  to  extort  a  consent  from  a  reluctant 
people.33 

The  chief  topic  of  debate  was  almost  of 


ANNULMENT  OF  LEGISLATION      71 

necessity  the  question  of  state  sovereignty. 
What  powers  of  government  were  the  States 
surrendering,  and  what  were  they  retaining? 
The  first  three  words  of  the  preamble  —  "We 
the  people"  —  provoked  as  much  discussion 
as  any  whole  article  in  the  Constitution  itself ; 
and  in  one  form  or  another  the  argument  over 
that  phrase  continued  until  it  was  settled  by 
the  Civil  War.  The  absence  of  any  bill  of 
rights  in  favor  of  either  the  people  or  the  States 
caused  a  storm  of  criticism  which  was  met  only 
by  a  general  understanding  that  the  principles 
involved  would  be  incorporated  promptly  into 
the  Constitution  by  amendment. 

Other  questions  which  were  fully  argued 
were  the  basis  of  representation  in  the  House 
of  Representatives,  the  frequency  of  elections, 
the  power  of  taxation  and  especially  the  right 
to  levy  direct  taxes,  the  control  over  federal 
elections,  the  method  of  impeachment,  the 
making  of  treaties,  the  power  of  the  executive, 
the  creation  of  a  federal  judiciary,  the  separa- 
tion or  confusion  of  function  among  the  three 
branches  of  government,  the  debt  of  the  Con- 
federation, and  slavery — some  of  them  matters 
which  have  proved  to  be  of  little  importance, 
but  others  going  to  the  foundation  of  our  sys- 


72  THE  JUDICIAL  VETO 

tern  of  government.  Much  alarm  was  caused 
by  the  vague  language  of  the  Constitution, 
which,  it  was  argued,  would  permit  the  cen- 
tral government  to  absorb  all  the  functions  of 
the  state  governments.  With  these  questions 
at  issue,  the  method  of  testing  and  checking 
violations  of  the  instrument  itself  could  hardly 
rank  higher  than  a  secondary  topic.  When  it 
was  broached,  it  was  often  discussed  in  the 
most  general  terms.  The  same  factors  were 
often  spoken  of  as  checks  upon  the  abuse  of 
any  authority,  whether  legislative  or  executive, 
namely,  frequent  elections,  impeachment,  and 
amendment  of  the  Constitution. 

Viewed  in  this  broad  aspect,  it  would  be 
surprising  to  find  any  clear  expression  of  popu- 
lar opinion  on  a  single  technical  issue  not  pre- 
sented by  any  language  in  the  document  under 
consideration.  Nevertheless  the  issue  was  not 
wholly  overlooked,  and  if  all  the  debates  had 
been  preserved  in  full,  it  is  probable  that  we 
should  find  considerable  argument  on  the  sub- 
ject. Without  pretending  to  have  made  an 
exhaustive  search,  I  submit  what  I  have  been 
able  to  gather,  arranging  the  material  by  States 
in  the  order  of  their  ratification. 

DELAWARE    ratified    the    Constitution    on 


ANNULMENT  OF  LEGISLATION      73 

December  6,  1787,  by  a  unanimous  vote  and 
without  debate. 

PENNSYLVANIA  followed  December  12, 1787, 
after  three  weeks  of  animated  *debate,  by  a 
vote  of  46  to  23.  The  speeches  of  the  Federal- 
ists led  by  James  Wilson  and  Thomas  McKean 
have  been  preserved,  and  there  can  be  no  doubt 
that  the  principle  of  judicial  control  was  fully 
expounded  by  them  and  was  accepted  by  the 
convention.  On  November  24,  McKean  pre- 
sented the  theory  distinctly  in  a  speech  sum- 
marized by  Wilson  as  follows : 34 

"In  order  to  secure  Liberty  and  the  Con- 
stitution, it  is  absolutely  necessary  that  the 
legislature  should  be  restrained. 

"It  may  be  restrained  in  several  ways: 

"1.  By  the  judges  deciding  agst  the  legis- 
lature in  favor  of  the  Constn." 

The  Anti-Federalists  were  led  by  John  Smi- 
lie,  Robert  Whitehill  and  William  Findley. 
On  the  28th  of  November,  Smilie  and  White- 
hill  both  discussed  the  question,  Smilie  begin- 
ning with  the  following  remarks: 35 

"So  loosely,  so  inaccurately  are  the  powers 
which  are  enumerated  in  this  Constitution 
defined,  that  it  will  be  impossible,  without  a 
test  of  that  kind  [bill  of  rights],  to  ascertain 


74  THE  JUDICIAL  VETO 

the  limits  of  authority,  and  to  declare  when 
government  has  degenerated  into  oppression. 
In  that  event  the  contest  will  be  between  the 

^ 

people  and  the  rulers :  *  You  have  exceeded  the 
powers  of  your  office,  you  have  oppressed  us,' 
will  be  the  language  of  the  suffering  citizen. 
The  answer  of  the  government  will  be  short  — 
'We  have  not  exceeded  our  power;  you  have 
no  test  by  which  you  can  prove  it.'  Hence, 
Sir,  it  will  be  impracticable  to  stop  the  prog- 
ress of  tyranny,  for  there  will  be  no  check  but 
the  people,  and  their  exertions  must  be  futile 
and  uncertain." 

Whitehill  said: 

"Besides  the  powers  enumerated,  we  find 
in  this  Constitution  an  authority  is  given  to 
make  all  laws  that  are  necessary  to  carry  it 
effectually  into  operation,  and  what  laws  are 
necessary  is  a  consideration  left  for  congress 
to  decide." 

And  Smilie  continued: 

"Those  very  men  who  raise  and  appropriate 
the  taxes  are  the  only  judges  of  what  shall  be 
deemed  the  general  welfare  and  common  de- 
fence of  the  national  government." 

Wilson  argued  the  point  elaborately  on  De- 
cember 1,  and  referred  to  it  again  answering 


ANNULMENT  OF  LEGISLATION      75 

unreported  speeches  of  Smilie  and  Whitehill 
on  December  4  and  7.  In  the  first  of  these 
addresses  he  said : 36 

"It  is  therefore  proper  to  have  efficient  re- 
straints upon  the  legislative  body.  These  re- 
straints arise  from  different  sources.  I  will 
mention  some  of  them.  In  this  Constitution 
they  will  be  produced,  in  a  very  considerable 
degree,  by  a  division  of  the  power  in  the  legis- 
lative body  itself.  Under  this  system,  they 
may  arise  likewise  from  the  interference  of  those 
officers  who  will  be  introduced  into  the  execu- 
tive and  judicial  departments.  They  may 
spring  also  from  another  source  —  the  elec- 
tion by  the  people;  and  finally,  under  this  Con- 
stitution, they  may  proceed  from  the  great  and 
last  resort  —  from  the  people  themselves.  I 
say,  under  this  Constitution,  the  legislature 
may  be  restrained,  and  kept  within  its  pre- 
scribed bounds,  by  the  interposition  of  the 
judicial  department.  This  I  hope,  sir,  to  ex- 
plain clearly  and  satisfactorily.  I  had  occa- 
sion, on  a  former  day,  to  state  that  the  power 
of  the  Constitution  was  paramount  to  the 
power  of  the  legislature  acting  under  that  Con- 
stitution; for  it  is  possible  that  the  legislature, 
when  acting  in  that  capacity,  may  transgress 


76  THE  JUDICIAL  VETO 

the  bounds  assigned  to  it,  and  an  act  may  pass, 
in  the  usual  mode,  notwithstanding  that  trans- 
gression; but  when  it  comes  to  be  discussed 
before  the  judges,  —  when  they  consider  its 
principles,  and  find  it  to  be  incompatible  with 
the  superior  power  of  the  Constitution,  —  it 
is  their  duty  to  pronounce  it  void;  and  judges 
independent,  and  not  obliged  to  look  to  every 
session  for  a  continuance  of  their  salaries,  will 
behave  with  intrepidity,  and  refuse  to  the  act 
the  sanction  of  judicial  authority.  In  the  same 
manner,  the  President  of  the  United  States 
could  shield  himself,  and  refuse  to  carry  into 
effect  an  act  that  violates  the  Constitution." 

It  is  unfortunate  that  the  speeches  of  the 
Anti-Federalists  during  the  latter  part  of  the 
convention  were  suppressed;  but  the  foregoing 
extracts  are  sufficient  to  show  that  the  doc- 
trine was  clearly  presented  to  the  convention, 
and  that  it  was  approved  by  the  Federalists, 
but  neither  accepted  nor  approved  by  the 
Anti-Federalists. 

Immediately  upon  the  close  of  the  conven- 
tion, twenty-one  of  the  twenty-three  Anti- 
Federalists  joined  in  an  Address  and  Reasons 
of  Dissent,  in  which  they  argue: 37 

"The  supremacy  of  the  laws  of  the  United 


ANNULMENT  OF  LEGISLATION      77 

States  is  established  by  article  sixth,  viz.,  .  .  . 
[quoting  from  the  Constitution],  It  has  been 
alleged  that  the  words  'pursuant  to  the  Con- 
stitution' are  a  restriction  upon  the  authority 
of  Congress;  but  when  it  is  considered  that 
by  other  sections  they  are  invested  with  every 
efficient  power  of  government,  and  which  may 
be  exercised  to  the  absolute  destruction  of  the 
state  governments,  without  any  violation  of 
even  the  forms  of  the  Constitution,  this  seem- 
ing restriction,  as  well  as  every  other  restriction 
in  it,  appears  to  us  to  be  nugatory  and  delu- 
sive; and  only  introduced  as  a  blind  upon  the 
real  nature  of  the  government.  In  our  opin- 
ion, 'pursuant  to  the  Constitution*  will  be 
co-extensive  with  the  will  and  pleasure  of  Con- 
gress, which,  indeed,  will  be  the  only  limitation 
of  their  powers." 

By  midsummer  of  1788  eleven  States  had 
ratified  the  Constitution  and  the  Union  was 
an  established  fact.  The  Anti-Federalists  of 
Pennsylvania  continued  their  activities  dur- 
ing the  interval,  but  gradually  changed  their 
method  of  attack,  agitating  not  for  rejection, 
but  for  amendment.  On  September  3  they 
assembled  thirty-three  delegates  at  Harris- 
burg  and  adopted  resolutions  urging  twelve 


78  THE  JUDICIAL  VETO 

amendments,  of  which  the  first  and  tenth  are 
especially  significant: 

"I.  That  congress  shall  not  exercise  any 
powers  whatsoever,  but  such  as  are  expressly 
given  to  that  body  by  the  Constitution  of  the 
United  States;  nor  shall  any  authority,  power 
or  jurisdiction,  be  assumed  or  exercised  by 
the  executive  or  judiciary  departments  of  the 
union  under  color  or  pretense  of  construction 
or  fiction.  But  all  the  rights  of  sovereignty 
which  are  not  by  the  said  Constitution  expressly 
and  plainly  vested  in  the  congress,  shall  be 
deemed  to  remain  with,  and  shall  be  exercised, 
by  the  several  States  in  the  union  according 
to  their  respective  constitutions. 

"X.  That  congress  establish  no  court  other 
than  the  supreme  court,  except  such  as  shall 
be  necessary  for  determining  causes  of  admir- 
alty jurisdiction." 

During  this  entire  period  the  newspapers 
had  been  full  of  letters  for  and  against  the 
Constitution.  Pamphlets  were  also  published 
by  individual  writers.  Among  the  first  of  the 
pamphleteers  appeared  Peletiah  Webster,  who 
printed  "Weakness  of  Brutus  Exposed,"  Nov- 
ember, 1787,  in  support  of  the  Constitution, 
arguing:  M 


ANNULMENT  OF  LEGISLATION      79 

"5.  Brutus  all  along  sounds  his  objections, 
and  fears,  on  extreme  cases  of  abuse  or  mis- 
application of  supreme  power,  which  may  pos- 
sibly happen,  under  the  administration  of  a 
wild,  weak,  or  wicked  congress;  but  'tis  easy 
to  observe  that  all  institutions  are  liable  to 
extremes,  but  ought  not  to  be  judged  by  them; 
they  do  not  often  appear,  and  perhaps  never 
may;  but  if  they  should  happen  in  the  cases 
supposed,  (which  God  forbid)  there  is  a  remedy 
pointed  out  in  the  Constitution  itself. 

"  'T  is  not  supposable  that  such  abuses 
could  arise  to  any  ruinous  height,  before  they 
would  affect  the  States  so  much,  that  at  least 
two-thirds  of  them  would  unite  in  pursuing  a 
remedy  in  the  mode  prescribed  by  the  Consti- 
tution, which  will  always  be  liable  to  amend- 
ment, whenever  any  mischiefs  or  abuses  appear 
in  the  government,  which  the  Constitution  in 
its  present  state,  can't  reach  and  correct." 

One  of  the  ablest  Anti-Federal  publicists 
was  "Centinel,"  whose  identity  has  never  been 
disclosed.  His  letters  were  printed  in  the 
Independent  Gazeteer  from  October  5,  1787,  to 
November  24,  1788.  In  Letter  VIII,  pub- 
lished December  29,  1787,  he  writes: 39 

"The  authors  of  the  present  conspiracy  are 


80  THE  JUDICIAL  VETO 

attempting  to  seize  upon  absolute  power  at 
one  grasp.  .  .  .  They  have  even  exposed  some 
of  their  batteries  prematurely,  for  the  unlim- 
ited power  of  taxation  would  alone  have  been 
amply  sufficient  for  every  purpose;  .  .  .  there- 
fore there  was  no  use  in  portraying  the  ulti- 
mate object  by  superadding  the  form  to  reality 
of  supremacy  in  the  following  clause,  viz.: 
That  which  empowers  the  new  congress  to 
make  all  laws  that  may  be  necessary  and 
proper  for  carrying  into  execution  any  of  their 
powers,  by  virtue  of  which  every  possible  law 
will  be  constitutional,  as  they  are  to  be  the 
sole  judges  of  the  propriety  of  such  laws." 

His  Letter  XVI,  published  February  23, 
1788,  is  a  curious  and  rather  hysterical  docu- 
ment, arguing  that  the  constitutional  prohibi- 
tion against  ex  post  facto  laws  would  prevent 
the  new  government  from  calling  public  de- 
faulters to  account.  He  proceeds: 40 

"It  may  be  said  that  the  new  congress  would 
rather  break  through  the  Constitution  than 
suffer  the  public  to  be  defrauded  of  so  much 
treasure,  .  .  .  but  this  is  not  to  be  expected. 
.  .  .  Besides,  should  congress  be  disposed  to 
violate  the  fundamental  articles  of  the  Con- 
stitution for  the  sake  of  public  justice, .  .  . 


ANNULMENT  OF  LEGISLATION      81 

still  it  would  be  of  no  avail,  as  there  is  a  fur- 
ther barrier  interposed  between  the  public  and 
these  defaulters,  namely,  the  supreme  court 
of  the  union,  whose  province  it  would  be  to 
determine  the  constitutionality  of  any  law 
that  may  be  controverted;  and  supposing  no 
bribery  or  corrupt  influence  practiced  on  the 
bench  of  judges,  it  would  be  their  sworn  duty 
to  refuse  their  sanction  to  laws  made  in  the 
face  and  contrary  to  the  letter  and  spirit  of 
the  Constitution,  as  any  law  to  compel  the 
settlement  of  accounts  and  payment  of  moneys 
depending  and  due  under  the  old  confedera- 
tion would  be.  The  1st  section  of  the  3d  article 
gives  the  supreme  court  cognizance  of  not  only 
the  laws,  but  of  all  cases  arising  under  the 
Constitution,  which  empowers  this  tribunal 
to  decide  upon  the  construction  of  the  Con- 
stitution itself  in  the  last  resort.  This  is  so 
extraordinary,  so  unprecedented  an  authority, 
that  the  intention  in  vesting  of  it  must  have 
been  to  put  it  out  of  the  power  of  congress, 
even  by  breaking  through  the  Constitution, 
to  compel  these  defaulters  to  restore  the  public 
treasure." 

This  letter  is  directed  against  the  Constitu- 
tion; so  that  while  "Centinel"  may  have  been 


82  THE  JUDICIAL  VETO 

educated  out  of  his  earlier  view,  perhaps  by  a 
study  of  Wilson's  speeches,  he  does  not  appear 
to  regard  judicial  control  as  a  desirable  fea- 
ture. 

NEW  JERSEY  ratified  December  18,  1787, 
and  GEORGIA  followed  January  2,  1788,  both 
unanimously. 

CONNECTICUT  fell  into  line  a  week  later  by 
the  decisive  vote  of  128  to  40.  The  question 
of  judicial  control  was  briefly  mentioned  in 
the  convention.  Not  much  has  been  preserved 
of  the  Connecticut  debates,  but  the  speech  by 
Ellsworth  above  mentioned  covers  the  issue 
clearly. 

The  more  popular  view  was  presented  in 
the  newspapers.  The  New  Haven  Gazette  of 
November  8,  1787,  published  a  letter  by  "An 
American  Citizen"  (dated  Philadelphia,  Sep- 
tember 29,  and  doubtless  circulated  in  Penn- 
sylvania also),  containing  the  following: 

"In  pursuing  the  consideration  of  the  new 
federal  Constitution,  it  remains  now  to  exam- 
ine the  nature  and  powers  of  the  house  of 
representatives,  the  immediate  delegates  of  the 
people.  .  .  . 

"They  alone  can  originate  bills  for  drawing 
forth  the  revenues  of  the  union,  and  they  will 


ANNULMENT  OF  LEGISLATION      83 

have  a  negative  upon  every  legislative  act  of 
the  other  branch.  So  far,  in  short,  as  the  sphere 
of  federal  jurisdiction  extends,  they  will  be 
controulable  only  by  the  people,  and  in  con- 
tentions with  the  other  branch,  so  far  as  they 
shall  be  right,  they  must  ever  finally  prevail." 

Another  Pennsylvania  author,  identified  as 
Noah  Webster,  was  quoted  in  the  issue  of  Nov- 
ember 29,  1787: 

"The  idea  that  congress  can  levy  taxes  at 
pleasure  is  false,  and  the  suggestion  wholly 
unsupported.  The  preamble  to  the  Constitu- 
tion is  declaratory  of  the  purposes  of  our  union; 
and  the  assumption  of  any  powers  not  neces- 
sary to  establish  justice,  insure  domestic  tran- 
quility,  provide  for  the  common  defence,  pro- 
mote the  general  welfare,  and  to  secure  the 
blessings  of  liberty  to  ourselves  and  our  pos- 
terity, will  be  unconstitutional  and  endanger 
the  existence  of  congress."  4l 

The  issue  of  November  22,  1787,  contains 
the  following,  by  "A  Countryman,"  identified 
by  Mr.  Paul  Leicester  Ford  as  Roger  Sher- 
man : 42 

"On  examining  the  new  proposed  Consti- 
tution, there  can  not  be  a  question,  but  that 
there  is  authority  enough  lodged  in  the  pro- 


84  THE  JUDICIAL  VETO 

posed  federal  congress,  if  abused,  to  do  the 
greatest  injury.  .  .  . 

"But  if  the  members  of  congress  are  to  be 
interested  just  as  you  and  I  are,  and  just  as 
the  members  of  our  present  legislatures  are 
interested,  we  shall  be  just  as  safe,  with  even 
supreme  power  (if  that  were  granted)  in  con- 
gress, as  in  the  general  assembly.  If  the  mem- 
bers of  congress  can  take  no  improper  step 
which  will  not  affect  them  as  much  as  it  does 
us,  we  need  not  apprehend  that  they  will  usurp 
authorities  not  given  them  to  injure  that 
society  of  which  they  are  a  part." 

MASSACHUSETTS.  When  the  question  of 
ratification  came  to  an  issue  in  Massachusetts, 
in  January  and  February,  1788,  the  easy  part 
of  the  Federalists'  work  was  over.  With  the 
exception  of  Maryland,  they  could  hope  for  no 
more  one-sided  victories.  South  Carolina  was 
promising;  but  Rhode  Island  was  hopeless, 
North  Carolina  was  hostile,  and  New  Hamp- 
shire had  elected  a  convention  with  a  majority 
instructed  against  ratification.  Even  with  the 
adherence  of  Maryland  and  South  Carolina, 
therefore,  the  ratifying  States  would  number 
only  seven  and  would  include  but  one  of  the 
large  and  powerful  States.  The  real  struggle 


ANNULMENT  OF  LEGISLATION      85 

began  in  Massachusetts  and  was  continued  in 
Virginia  and  New  York,  for  without  the  sup- 
port of  all  three  of  these  States  a  central  gov- 
ernment, if  created  at  all,  would  have  but  a 
doubtful  chance  of  success.  The  action  of  these 
three  States  is,  therefore,  of  special  interest. 

The  question  of  restraining  unconstitutional 
action  by  Congress  was  first  discussed  in  the 
Massachusetts  convention  by  James  Bowdoin, 
of  Boston,  who  argued  that  usurpation  would 
be  prevented  by  the  following  checks: 43 

(1)  Election  by  the  people;  (2)  the  oath  taken 
by  federal  officers;  (3)  impeachment;  (4)  in- 
eligibility  for  other  office  during  their  term; 
(5)  prohibition  of  titles  of  nobility;  (6)  guaran- 
tee of  a  republican  form  of  government;  (7) 
division  of  Congress  into  two  branches;  (8) 
President's  veto;  (9)  publicity  of  proceedings; 
(10)  character  of  men  to  be  elected;  (11)  the 
fact  that  Congressmen  will  themselves  be  sub- 
ject to  their  own  laws. 

Theophilus  Parsons,  continuing  the  discus- 
sion, added: 44 

\  "The  Hon.  Gentleman  from  Boston  has 
stated  at  large  most  of  the  checks  the  people 
have  against  usurpation,  and  the  abuse  of 
power  [by  Congress]  under  the  proposed  con- 


86  THE  JUDICIAL  VETO 

stitution.  .  .  .  But  there  is  another  check, 
founded  in  the  nature  of  the  union,  superior 
to  all  the  parchment  checks  that  can  be  in- 
vented. If  there  should  be  a  usurpation,  it  will 
not  be  upon  the  farmer  and  merchant,  employed 
and  attentive  only  to  their  several  occupations, 
it  will  be  upon  thirteen  legislatures,  completely 
organized,  possessed  of  the  confidence  of  the 
people,  and  having  the  means,  as  well  as  in- 
clination, successfully  to  oppose  it.  Under 
these  circumstances,  none  but  mad  men  would 
attempt  an  usurpation.  But,  sir,  the  people 
themselves  have  it  in  their  power  effectually 
to  resist  usurpation;  without  being  driven  to 
an  appeal  to  arms.  An  act  of  usurpation  is  not 
obligatory,  it  is  not  law,  and  any  man  may  be 
justified  in  his  resistance.  Let  him  be  consid- 
ered as  a  criminal  by  the  general  government, 
yet  only  his  own  fellow  citizens  can  convict 
him  —  they  are  his  jury,  and  if  they  pronounce 
him  innocent,  not  all  the  powers  of  congress 
can  hurt  him." 

Samuel  Adams  took  little  part  in  the  debate 
during  the  first  days  of  the  session.  Like  most 
of  the  radicals  he  was  an  Anti-Federalist,  and 
unless  he  could  be  persuaded  to  modify  his 
opinions  and  vote  for  ratification,  the  Con- 


ANNULMENT  OF  LEGISLATION      87 

stitution  had  little  chance  of  being  adopted 
by  Massachusetts.  His  influence  was  strong 
enough  in  the  evenly  balanced  convention  to 
be  the  decisive  factor;  and  his  view  may  be 
considered  not  only  representative,  but  also 
of  the  first  importance  in  guiding  immediate 
action  in  the  convention  and  future  action 
in  Congress.  Toward  the  close  of  the  session 
he  indicated  his  intention  to  support  the  Con- 
stitution, urging  at  the  same  time  amendments 
limiting  the  powers  of  the  general  government 
and  defining  those  of  the  States.  He  said: 45 

"Your  Excellency's  first  proposition  is, 
'that  it  be  explicitly  declared,  that  all  powers 
not  expressly  delegated  to  congress  are  re- 
served to  the  several  States,  to  be  by  them 
exercised.'  This  appears,  to  my  mind,  to  be  a 
summary  of  a  bill  of  rights,  which  gentlemen 
are  anxious  to  obtain.  It  removes  a  doubt 
which  many  have  entertained  respecting  the 
matter,  and  gives  assurance  that,  if  any  law 
made  by  the  federal  government  shall  be  ex- 
tended beyond  the  power  granted  by  the  pro- 
posed Constitution,  and  inconsistent  with  the 
constitution  of  this  State,  it  will  be  an  error, 
and  adjudged  by  the  courts  of  law  to  be  void. 

"It  is  consonant  with  the  second  article  in 


88  THE  JUDICIAL  VETO 

the  present  confederation,  that  each  State 
retains  its  sovereignty,  freedom  and  independ- 
ence, and  every  power,  jurisdiction  and  right, 
which  is  not  by  this  confederation  expressly 
delegated  to  the  United  States  in  congress  as- 
sembled. I  have  long  considered  the  watch- 
fulness of  the  people  over  their  rulers  the  strong- 
est guard  against  the  encroachments  of  power; 
and  I  hope  the  people  of  this  country  will  al- 
ways be  thus  watchful." 

Although  Adams  does  not  expressly  say  state 
courts,  the  strong  inference  is  that  he  referred 
to  state  courts  only  and  was  so  understood  by 
the  convention.  He  was  discussing  not  checks 
and  balances  in  the  federal  machinery,  but 
limitations  to  be  imposed  on  the  national  gov- 
ernment in  favor  of  the  States;  and  he  men- 
tions this  action  of  "the  courts  of  law"  as  a 
primary  instance  of  the  exercise  of  a  reserved 
power  by  the  States. 

That  his  view  was  adopted  by  the  conven- 
tion, and  that  the  plan  of  leaving  the  control 
of  congressional  legislation  to  the  state  courts 
was  endorsed,  is  further  indicated  by  the  course 
of  William  Symmes,  of  Andover.  At  first 
Symmes  was  opposed  to  the  Constitution  on 
the  ground  that  it  gave  the  federal  govern- 


ANNULMENT  OF  LEGISLATION     89 

ment  too  much  power.  Discussing  the  grant 
of  powers  to  Congress,  he  said: 46 

"Here,  Sir,  (however  kindly  congress  may 
be  pleased  to  deal  with  us)  is  a  very  good  and 
valid  conveyance  of  all  the  property  in  the 
United  States^- to  certain  uses,  indeed,  but 
those  uses  capable  of  any  construction  the  trus- 
tees may  think  proper  to  make.  This  body  is 
not  amenable  to  any  tribunal,  and  therefore 
this  congress  can  do  no  wrong." 

But  after  the  introduction  of  the  amend- 
ments and  Adams's  speech,  he  declared: 
"Upon  the  whole,  Mr.  President,  approving 
the  amendments,  and  firmly  believing  that  they 
will  be  adopted,  I  recall  my  former  opposi- 
tion." 47 

Even  with  the  support  of  Adams  and  his 
followers,  the  vote  was  close,  187  to  168,  but 
finally  on  February  6,  1788,  the  Constitution 
was  ratified.  The  ratification  was  in  the  form 
of  a  resolution,  declaring  that  we,  the  conven- 
tion, do  "ratify  the  said  Constitution  for  the 
United  States  of  America.  And  as  it  is  the 
opinion  of  this  Convention,  that  certain  amend- 
ments and  alterations  in  the  said  Constitu- 
tion would  .  .  .  more  effectually  guard  against 
an  undue  administration  of  the  federal  govern- 


90  THE  JUDICIAL  VETO 

ment,   the  Convention  do  therefore  recom- 
mend .  .  . 

"I.  That  it  be  explicitly  declared  that  all 
powers  not  expressly  delegated  by  the  afore- 
said Constitution  are  reserved  to  the  several 
States,  to  be  by  them  exercised."  ^ 

In  MARYLAND  the  Federalists  knew  they 
had  a  majority  and  resolutely  declined  to  de- 
bate. The  organization  of  the  convention  occu- 
pied three  days,  and  a  day  and  a  half  were 
taken  by  the  Anti-Federalists  to  express  their 
opposition,  so  that  ratification  was  carried 
on  the  fifth  day,  April  26,  1788,  by  a  vote  of 
63  to  11.  An  attempt  was  then  made  by  the 
minority  to  get  a  hearing  for  various  amend- 
ments, but  the  proceedings  ran  foul  of  a  point 
of  order  and  the  obvious  impatience  of  the 
delegates,  and  the  convention  by  a  vote  of  47 
to  27  adjourned  without  acting  on  the  amend- 
ments.49 

Twelve  members,  including  Luther  Martin, 
published  an  account  of  the  proceedings,  with 
the  proposed  amendments,  which  included: 

"1.  That  congress  shall  exercise  no  power 
but  what  is  expressly  delegated  by  this  Consti- 
tution. 

"6.    That  the  federal  courts  shall  not  be 


ANNULMENT  OF  LEGISLATION     91 

entitled  to  jurisdiction  by  fictions  or  collu- 


sion." 


It  appears  from  the  report  that  both  of  these 
proposals  had  the  approval  of  a  considerable 
number  of  Federalists,  but  they  became  en- 
tangled in  questions  of  procedure  and  were 
never  voted  on.  They  were,  however,  pub- 
lished in  the  newspapers  of  various  other 
States. 

In  electing  the  delegates  who  pursued  this 
course,  the  people  of  Maryland  had  before 
them  Luther  Martin's  letter  already  quoted, 
and  also  a  paper  by  Alexander  Contee  Hanson, 
afterwards  a  member  of  the  convention,  who 
under  the  name  "  Aristides"  wrote  as  follows : 50 

"I  take  the  construction  of  these  words 
[Const.,  Art.  I,  sec.  8,  §  18]  to  be  precisely  the 
same,  as  if  the  clause  had  preceded  [sic]  fur- 
ther and  said,  'No  act  of  congress  shall  be  valid, 
unless  it  have  relation  to  the  foregoing  powers, 
and  be  necessary  and  proper  for  carrying  them 
into  execution.'  But  say  the  objectors,  'The 
congress,  being  itself  to  judge  of  the  necessity 
and  propriety,  may  pass  any  act,  which  it  may 
deem  expedient,  for  any  other  purpose.'  The 
objection  applies  with  equal  force  to  each  par- 
ticular power,  defined  by  the  Constitution; 


93  THE  JUDICIAL  VETO 

and,  if  there  were  a  bill  of  rights,  congress 
might  be  said  to  be  the  judge  of  that  also.  They 
may  reflect  however,  that  every  judge  in  the 
union,  whether  of  federal  or  of  state  appoint- 
ment, (and  some  persons  would  say  every 
jury)  will  have  a  right  to  reject  any  act,  handed 
to  him  as  a  law,  which  he  may  conceive  to  be 
repugnant  to  the  Constitution." 

In  SOUTH  CAROLINA  the  Constitution  was 
read  and  discussed  in  the  House  of  Repre- 
sentatives before  the  ratifying  convention  was 
summoned.  John  Julius  Pringle,  afterwards 
a  member  of  the  convention,  addressing  the 
House,  said: 81 

"The  treaties  will  affect  all  the  individuals 
equally  of  all  the  States. 

"If  the  President  and  senate  make  such  as 
violate  the  fundamental  laws,  and  subvert 
the  Constitution,  or  tend  to  the  destruction 
of  the  happiness  and  liberty  of  the  States,  the 
evils,  equally  oppressing  all,  will  be  removed 
as  soon  as  felt,  as  those  who  are  oppressed  have 
the  power  and  means  of  redress.  Such  treaties, 
not  being  made  with  good  faith,  and  on  the 
broad  basis  of  reciprocal  interest  and  conven- 
ience, but  by  treachery  and  a  betraying  of 
trust,  and  by  exceeding  the  powers  with  which 


ANNULMENT  OF  LEGISLATION     93 

the  makers  were  intrusted,  ought  to  be  annulled. 
No  nations  would  keep  treaties  thus  made." 

Edward  Rutledge,  also  a  member  of  the 
convention,  spoke  on  the  same  subject,  as 
follows:52 

"But  the  gentleman  had  said,  that  there 
were  points  in  this  new  confederation  which 
would  endanger  the  rights  of  the  people  — 
that  the  President  and  ten  senators  may  make 
treaties.  ...  It  was  true,  that  the  President, 
with  the  concurrence  of  two-thirds  of  the  sen- 
ate might  make  treaties,  and  it  was  possible 
that  ten  senators  might  constitute  the  two- 
thirds,  but  it  was  just  within  the  reach  of  pos- 
sibility, and  a  possibility  from  whence  no  dan- 
ger could  be  apprehended;  if  the  President  or 
the  senators  abused  their  trust,  they  were  an- 
swerable for  then*  conduct  —  they  were  liable 
to  impeachment  and  punishment." 

Charles  Pinckney,  a  member  of  the  consti- 
tutional convention,  discussing  before  the  state 
Convention  the  powers  of  the  President,  the 
Senate,  and  the  House  of  Representatives  (but 
not  the  judiciary)  said: 6S 

"With  this  powerful  influence  of  the  purse, 
they  [the  House]  will  always  be  able  to  restrain 
the  usurpations  of  the  other  departments,  while 


94  THE  JUDICIAL  VETO 

their  own  licentiousness  will,  in  its  turn,  be 
checked  and  corrected  by  them." 

Ratification  was  adopted  May  23,  1788,  by 
a  vote  of  149  to  73. 

The  following  resolution  was  also  adopted: 

"This  convention  doth  also  declare  that  no 
section  or  paragraph  of  the  said  Constitution 
warrants  a  construction  that  the  States  do  not 
retain  every  power  not  expressly  relinquished 
by  them,  and  vested  in  the  general  government 
of  the  Union." 54 

NEW  HAMPSHIRE.  The  New  Hampshire 
convention  met  early  in  the  year  with  a  major- 
ity opposed  to  ratification  or  instructed  against 
it.  After  some  discussion  the  members,  by  a 
majority  of  3,  decided  to  adjourn  till  June,  in 
order  to  find  out  what  action  Massachusetts 
would  take.  During  the  interval  the  debates 
in  the  Massachusetts  convention  were  fully 
reported  in  the  New  Hampshire  Gazette.  When 
the  convention  reassembled,  it  voted  ratifica- 
tion 57  to  46,  and  adopted  recommendations 
for  amendment  virtually  identical  with  those 
of  Massachusetts. 

With  the  vote  of  New  Hampshire,  the  exist- 
ence of  the  United  States  became  a  legal  fact; 
but  practically  the  action  of  Virginia  and 


ANNULMENT  OF  LEGISLATION     95 

New  York  remained  almost  as  important  as 
before. 

VIRGINIA.  Mention  has  already  been  made 
of  the  arguments  of  Edmund  Randolph  and 
George  Mason  in  the  Virginia  convention. 
John  Marshall  voiced  the  doctrine  of  judicial 
control: 55 

"Has  the  government  of  the  United  States 
power  to  make  laws  on  every  subject?  .  .  . 
Can  they  go  beyond  the  delegated  powers? 
If  they  were  to  make  a  law  not  warranted  by 
any  of  the  powers  enumerated,  it  would  be 
considered  by  the  judges  as  an  infringement 
of  the  Constitution  which  they  are  to  guard. 
They  would  not  consider  such  a  law  as  coming 
under  their  jurisdiction.  They  would  declare 
it  void.  ...  To  what  quarter  will  you  look  for 
protection  from  an  infringement  on  the  Con- 
stitution, if  you  will  not  give  the  power  to  the 
judiciary?  There  is  no  other  power  that  can 
afford  such  a  protection." 

William  Grayson,  on  the  other  hand,  evi- 
dently thought  that  judicial  decision  would 
not  be  final : 56 

"In  England  they  have  great  courts,  which 
have  great  and  interfering  powers.  But  the 
controlling  power  of  parliament,  which  is  a 


96  THE  JUDICIAL  VETO 

central  focus,  corrects  them.  But  here  each 
party  is  to  shift  for  itself.  There  is  no  arbiter 
or  power  to  correct  their  interference.  Recur- 
rence can  be  only  had  to  the  sword." 

Wilson  Nicholas  argued  that  the  final  check 
would  be  the  ballot: 67 

"The  State  legislatures,  also,  will  be  a  power- 
ful check  on  them:  every  new  power  given  to 
congress  is  taken  from  the  State  legislatures; 
they  will  be,  therefore,  very  watchful  over 
them;  for,  should  they  exercise  any  power  not 
vested  in  them,  it  will  be  a  usurpation  of  the 
rights  of  the  different  State  legislatures,  who 
would  sound  the  alarm  to  the  people." 

H.  Lee,  of  Westmoreland,  referred  to  the 
question  in  broad  terms : 58 

"When  a  question  arises  with  respect  to  the 
legality  of  any  power  exercised  or  assumed  by 
congress,  it  is  plain  on  the  side  of  the  governed : 
Is  it  enumerated  in  the  Constitution?  If  it  be, 
it  is  legal  and  just.  It  is  otherwise  arbitrary 
and  unconstitutional." 

Edmund  Pendleton  recognized  judicial  an- 
nulment as  having  occurred  in  the  State,  but 
did  not  rely  on  it: 59 

"My  brethren  in  that  department  [the  ju- 
dicial] felt  great  uneasiness  in  their  minds  to 


ANNULMENT  OF  LEGISLATION     97 

violate  the  Constitution  by  such  a  law.  They 
have  prevented  the  operation  of  some  uncon- 
stitutional acts.  Notwithstanding  those  vio- 
lations, I  rely  upon  the  principles  of  the  gov- 
ernment —  that  it  will  produce  its  own  reform, 
by  the  responsibility  resulting  from  frequent 
elections." 

George  Nicholas  said:  w 

"Who  is  to  determine  the  extent  of  such 
powers?  I  say,  the  same  power  which,  in  all 
well-regulated  communities,  determines  the 
extent  of  legislative  powers.  If  they  exceed 
these  powers,  the  judiciary  will  declare  it  void, 
or  else  the  people  will  have  a  right  to  declare 
it  void." 

Patrick  Henry  was  the  leader  of  the  Anti- 
Federalists  and  was  on  his  feet  constantly  in 
opposition  to  the  Constitution.  He  usually 
argued  on  such  broad  grounds  that  he  did  not 
touch  the  specific  point  of  judicial  control;  but 
his  view  appears  to  have  been  that  while  the 
federal  courts  might  on  occasion  declare  an 
act  of  Congress  unconstitutional,  the  chief  reli- 
ance of  the  people  ought  to  be  based  on  the 
state  judiciary.  His  remarks  were  as  follows : 61 

"The  honorable  gentleman  did  our  judiciary 
honor  in  saying  that  they  had  firmness  to  coun- 


98  THE  JUDICIAL  VETO 

teract  the  legislature  in  some  cases.  Yes,  sir, 
our  judges  opposed  the  acts  of  the  legislature. 
We  have  this  landmark  to  guide  us.  They  had 
the  fortitude  to  declare  that  they  were  the 
judiciary,  and  would  oppose  unconstitutional 
acts.  Are  you  sure  that  your  federal  judiciary 
will  act  thus?  ...  I  take  it  as  the  highest  en- 
comium on  this  country*  that  the  acts  of  the 
legislature,  if  unconstitutional,  are  liable  to 
be  opposed  by  the  judiciary.  .  .  . 

"I  consider  the  Virginia  judiciary  as  one  of 
the  best  barriers  against  strides  of  power.  .  .  . 
So  small  are  the  barriers  against  the  encroach- 
ments and  usurpations  of  congress,  that,  when 
I  see  this  last  barrier  —  the  independency  of 
the  judges  —  impaired  [by  appointing  them 
federal  judges  at  the  same  time,  as  it  was  sug- 
gested might  be  done  for  economy],  I  am  per- 
suaded I  see  the  prostration  of  all  our  rights. 
.  .  .  When  congress,  by  virtue  of  this  sweeping 
clause,  will  organize  these  courts,  they  cannot 
depart  from  the  Constitution;  and  their  laws 
in  opposition  to  the  Constitution  would  be 
void.  If  congress,  under  the  specious  pretence 
of  pursuing  this  clause,  altered  it,  and  pro- 
hibited appeals  as  to  fact,  the  federal  judges, 
if  they  spoke  the  sentiments  of  independent 


ANNULMENT  OF  LEGISLATION     99 

men,  would  declare  their  prohibition  nugatory 
and  void." 

On  June  25,  1788,  the  convention  adopted 
89  to  79,  a  resolution  which  declared  that  "the 
powers  granted  under  the  Constitution,  being 
derived  from  the  people  of  the  United  States, 
may  be  resumed  by  them  whenever  the  same 
shall  be  perverted  to  their  injury  or  oppression, 
and  that  every  power  not  granted  thereby 
remains  with  them  and  at  their  will;  that, 
therefore,  no  right,  of  any  denomination,  can 
be  cancelled,  abridged,  restrained,  or  modified, 
by  the  Congress  ...  or  any  department  or 
officer  of  the  United  States,  except  in  those 
instances  in  which  power  is  given  by  the  Con- 
stitution for  those  purposes.  .  .  .  With  these 
impressions  we,  the  delegates,  ratify  the  Con- 
stitution." 62  They  thereupon  adopted  also  a 
bill  of  rights  containing  twenty  paragraphs  and 
a  series  of  proposed  amendments  which  in- 
cluded the  following:83 

"  14th.  That  the  judicial  power  of  the  United 
States  shall  be  vested  in  one  supreme  court,  and 
in  such  courts  of  admiralty  as  congress  may 
from  time  to  time  ordain  and  establish  in  any 
of  the  different  States.  The  judicial  power  shall 
extend  to  all  cases  in  law  and  equity  arising 


100  THE  JUDICIAL  VETO 

under  treaties,"  including  cases  between  States, 
cases  where  the  United  States  or  an  ambassa- 
dor is  a  party,  and  admiralty  cases. 

It  is  noteworthy  that  this  fourteenth  amend- 
ment did  not  include  cases  arising  under  the 
laws  and  Constitution  of  the  United  States. 

In  Virginia,  as  in  other  States,  a  crop  of 
pamphlets  and  newspaper  articles  sprang  up, 
among  which  was  Richard  Harry  Lee's  "Let- 
ters of  a  Federal  Farmer."  In  Letter  IV,  dated 
October  12,  1787,  arguing  against  ratification, 
he  writes : 64 

"By  the  article  before  recited  [Art.  VI], 
treaties  also  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law:  It  is 
not  said  that  these  treaties  shall  be  made  in 
pursuance  of  the  Constitution  —  nor  are  there 
any  constitutional  bounds  set  to  those  who 
shall  make  them :  The  President  and  two-thirds 
of  the  senate  will  be  empowered  to  make  trea- 
ties indefinitely,  and  when  these  treaties  shall 
be  made,  they  will  also  abolish  all  law  and 
State  constitutions  incompatible  with  them. 
This  power  in  the  President  and  senate  is  abso- 
lute, and  the  judges  will  be  bound  to  allow  full 
force  to  whatever  rule,  article  or  thing  the  Presi- 
dent and  senate  shall  establish  by  treaty.  . . ." 


ANNULMENT  OF  LEGISLATION    101 

The  author  of  these  letters  was  one  of  the 
first  Senators  from  Virginia  and  a  member  of 
the  judiciary  committee  which  framed  the  act 
of  1789. 

NEW  YORK.  The  theory  of  judicial  control 
was  fully  expounded  by  Alexander  Hamilton 
in  Number  78  of  the  Federalist.  But  in  the 
state  convention  the  question  seems  never 
squarely  to  have  arisen,  and  even  Hamilton, 
though  arguing  that  an  unconstitutional  law 
would  not  be  binding,  does  not  indicate  by 
whom  the  statute  would  be  pronounced  un- 
constitutional.65 Most  of  the  debate  that  ap- 
proached this  issue  turned  on  the  corruption 
of  Congress  or  oppression  through  laws  within 
the  letter  of  the  Constitution  construed  as  it 
was  supposed  that  a  centralized  government 
might  interpret  it.66  It  may  fairly  be  in- 
ferred, however,  from  the  following  speech  of 
Melancthon  Smith,  one  of  the  Anti-Federalist 
leaders,  that  he  considered  that  Congress  would 
interpret  the  Constitution  for  itself,  and  that 
the  federal  as  well  as  state  courts  would  be 
bound  to  give  effect  to  all  federal  statutes:67 

"Whether  then  the  general  government 
would  have  a  right  to  control  the  States  in 
taxation,  was  a  question  which  depended  upon 


102  THE  JUDICIAL  VETO 

the  construction  of  the  Constitution.  .  .  .  No 
such  important  point  should  be  left  to  doubt 
and  construction.  The  clause  should  be  so 
formed  as  to  render  the  business  of  legislation 
as  simple  and  plain  as  possible.  It  was  not  to 
be  expected,  that  the  members  of  the  federal 
legislature  would  generally  be  versed  in  those 
subtilties,  which  distinguish  the  profession  of 
the  law.  They  would  not  be  disposed  to  make 
nice  distinctions,  with  respect  to  jurisdiction. 
.  .  .  They  would  have  power  to  abrogate  the 
laws  of  the  States,  and  to  prevent  the  opera- 
tion of  their  taxes;  and  all  courts,  before  whom 
any  disputes  on  these  points  should  come, 
whether  federal  or  not,  would  be  bound  by 
oath  to  give  judgment  according  to  the  laws 
of  the  union." 

By  a  vote  of  30  to  27  the  convention  ratified 
the  Constitution  July  26,?1788,  prefixing  to  the 
formal  statement  of  ratification  a  bill  of  rights 
declared  to  be  consistent  with  the  Constitution, 
and  adding  a  series  of  amendments  which  the 
New  York  representatives  in  Congress  were 
enjoined  to  secure.  The  bill  of  rights  contains 
the  following:68 

"That  every  power,  jurisdiction,  and  right, 
which  is  not  by  the  said  Constitution  clearly 


ANNULMENT  OF  LEGISLATION    103 

delegated  to  the  congress  of  the  United 
States,  or  the  departments  of  the  government 
thereof,  remains  to  the  people  of  the  several 
States,  or  to  their  respective  State  govern- 
ments, to  whom  they  may  have  granted  the 
same.  .  .  . 

"That  the  jurisdiction  of  the  supreme  court 
of  the  United  States,  or  of  any  other  court  to 
be  instituted  by  congress,  is  not  in  any  case 
to  be  increased,  enlarged,  or  extended,  by  any 
fiction,  collusion,  or  mere  suggestion." 

And  the  amendments  include: 69 

"That  the  congress  shall  not  constitute, 
ordain  or  establish  any  tribunals  or  inferior 
courts,  with  any  other  than  appellate  juris- 
diction, except  such  as  may  be  necessary  for 
the  trial  of  cases  of  admiralty  and  maritime 
jurisdiction,  and  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas;  and  in  all 
other  cases  to  which  the  judicial  power  of  the 
United  States  extends,  and  in  which  the  su- 
preme court  of  the  United  States  has  not  ori- 
ginal jurisdiction,  the  causes  shall  be  heard, 
tried,  and  determined  in  some  of  the  State 
courts,  with  the  right  of  appeal  to  the  supreme 
court  of  the  United  States,  or  other  proper  tri- 
bunal, to  be  established  for  the  purpose  by  the 


104  THE  JUDICIAL  VETO 

congress,  with  such  exceptions,  and  under  such 
regulations,  as  congress  shall  make." 

The  New  York  newspapers  published  letters 
arguing  all  sides  of  the  question.  In  the  Jour- 
nal of  January  17,  1788,  we  find  the  following 
by  "Countryman": 

"I  might  have  saved  myself  a  world  of 
trouble,  in  searching  to  find  out  the  meaning 
of  the  new  Constitution,  if  I  had  only  attended 
a  little  more  closely  at  first,  to  that  clause 
which  says,  the  congress  shall  have  power  to 
lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, to  pay  the  debts  and  provide  for  the  com- 
mon defence  and  general  welfare  of  the  United 
States  —  and  the  other  clause,  which  gives 
them  power  to  make  all  laws  that  shall  be 
necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powers,  and  all  other  powers, 
vested  by  this  constitution  in  the  government 
of  the  United  States,  or  in  any  department  or 
officer  thereof.  The  first  gives  them  power  to 
do  any  thing  at  all,  if  they  only  please  to  say, 
it  is  for  the  common  welfare,  for  they  are  the 
only  judges  of  this." 

The  argument  in  favor  of  vesting  judicial 
control  in  the  courts  was  fully  and  cogently 
presented  by  Alexander  Hamilton  in  the  Fed- 


ANNULMENT  OF  LEGISLATION    105 

eralist  series,  while  the  opposite  view  was 
strongly  urged  by  Robert  Yates  70  writing  as 
"Brutus."  A  brief  extract  from  Yates  has 
already  been  quoted.  The  Federalist  papers 
are  too  well  known  and  too  readily  accessible 
to  justify  a  more  extended  reference;  but  as 
the  Brutus  letters  have  never  to  my  know- 
ledge been  reprinted,  and  as  they  prophesy 
with  remarkable  accuracy  the  development 
of  judicial  power  that  would  result  from  vest- 
ing in  the  courts  the  authority  to  decide  upon 
the  constitutionality  of  statutes,  I  add  several 
paragraphs  from  Letters  XI  and  XV.  In  the 
light  of  current  discussion,  they  might  well  be 
reprinted  in  full. 

"XI.  This  government  is  a  complete  sys- 
tem, not  only  for  making,  but  for  executing 
laws.  And  the  courts  of  law,  which  will  be  con- 
stituted by  it,  are  not  only  to  decide  upon  the 
Constitution  and  the  laws  made  in  pursuance 
of  it,  but  by  officers  subordinate  to  them,  to 
execute  all  their  decisions.  The  real  effect  of 
this  system  of  government  will  therefore  be 
brought  home  to  the  feelings  of  the  people 
through  the  medium  of  the  judicial  power.  .  .  . 
No  errors  they  may  commit  can  be  corrected 
by  any  power  above  them,  if  any  such  power 


106  THE  JUDICIAL  VETO 

there  be,  nor  can  they  be  removed  from  office 
for  making  ever  so  many  erroneous  decis- 
ions. .  .  . 

"From  these  remarks  [discussion  of  Art.  3, 
§  2],  the  authority  and  business  of  the  courts 
of  law,  under  this  clause  may  be  understood. 

"They  will  give  the  sense  of  every  article  of 
the  Constitution  that  may  from  time  to  time 
come  before  them.  And  in  their  decisions  they 
will  not  confine  themselves  to  any  fixed  or 
established  rules,  but  will  determine  according 
to  what  appears  to  them  the  reason  and  spirit 
of  the  Constitution.  The  opinions  of  the  su- 
preme court,  whatever  they  may  be,  will  have 
the  force  of  law;  because  there  is  no  power 
provided  in  the  Constitution,  that  can  correct 
their  errors  or  control  their  jurisdiction.  From 
this  court  there  is  no  appeal.  And  I  conceive 
the  legislature  themselves  cannot  set  aside  a 
judgment  of  this  court,  because  they  are  au- 
thorized by  the  Constitution  to  decide  in  the 
last  resort.  .  .  . 

"  The  judicial  power  will  operate  to  effect 
in  the  most  certain  but  silent  and  impercep- 
tible manner  what  is  evidently  the  tendency 
of  the  Constitution  —  I  mean,  an  entire  sub- 
version of  the  legislative,  executive  and  judi- 


ANNULMENT  OF  LEGISLATION    107 

cial  powers  of  the  individual  States.  Every 
adjudication  of  the  supreme  court,  on  any 
question  that  may  arise  upon  the  nature  and 
extent  of  the  general  government,  will  affect 
the  limits  of  the  State  jurisdiction.  In  propor- 
tion as  the  former  enlarge  the  exercise  of  their 
powers,  will  that  of  the  latter  be  restricted. 

"That  the  judicial  power  of  the  United  States 
will  lean  strongly  in  favor  of  the  general  gov- 
ernment, and  will  give  such  an  explanation  to 
the  Constitution,  as  will  favor  an  extension  of 
its  jurisdiction,  is  very  evident  from  a  variety 
of  considerations." 

"XV.  The  power  of  this  court  is  in  many 
cases  superior  to  that  of  the  legislature.  I 
have  shewed  in  a  former  paper  that  this  court 
will  be  authorized  to  decide  upon  the  meaning 
of  the  Constitution,  and  that  not  only  accord- 
ing to  the  natural  and  oib[sic — obvious?]  mean- 
ing of  the  words,  but  also  according  to  the 
spirit  and  intention  of  it.  In  the  exercise  of 
this  power  they  will  be  not  subordinate  to  but 
above  the  legislature.  .  .  .  The  supreme  court 
then  have  a  right,  independent  of  the  legis- 
lature, to  give  a  construction  to  the  Constitu- 
tion and  every  part  of  it,  and  there  is  no  power 
provided  in  this  system  to  correct  their  con- 


108  THE  JUDICIAL  VETO 

struction  or  do  away  with  it.  If  therefore  the 
legislature  pass  any  laws  inconsistent  with  the 
sense  the  judges  put  upon  the  Constitution, 
they  will  declare  it  void;  and  therefore  in  this 
respect  their  power  is  superior  to  that  of  the 
legislature." 

Although  NORTH  CAROLINA  did  not  ratify 
until  November  21, 1789,  after  the  close  of  the 
first  session  of  Congress,  yet  her  attitude  had 
its  effect  upon  the  political  situation.  Madison 
and  other  leading  statesmen  were  anxious  to 
bring  both  North  Carolina  and  Rhode  Island 
into  the  Union  as  quickly  as  possible,  and  kept 
constantly  in  mind  the  effect  of  both  Congres- 
sional legislation  and  constitutional  amend- 
ment upon  those  States.  In  the  first  North 
Carolina  convention  several  Federalists  dis- 
cussed Congressional  usurpation.  John  Steele 
said:71 

"The  judicial  power  of  that  government  is  so 
well  constructed  as  to  be  a  check.  There  was 
no  check  in  the  old  confederation.  Their 
power  was,  in  principle  and  theory,  transcend- 
ent. If  the  congress  make  laws  inconsistent 
with  the  Constitution,  independent  judges  will 
not  uphold  them,  nor  will  the  people  obey 
them.  A  universal  resistance  will  ensue." 


ANNULMENT  OF  LEGISLATION    109 

Archibald  Maclaine  did  not  accept  judicial 
control : 72 

"We  know  now  that  it  is  agreed  upon  by 
most  writers,  and  men  of  judgment  and  reflec- 
tion, that  all  power  is  in  the  people,  and  imme- 
diately derived  from  them.  ...  If  congress 
should  make  a  law  beyond  the  powers  and  the 
spirit  of  the  Constitution,  should  we  not  say  to 
congress,  'You  have  no  authority  to  make  this 
law.  There  are  limits  beyond  which  you  cannot 
go.  You  cannot  exceed  the  power  prescribed 
by  the  Constitution.  You  are  amenable  to  us 
for  your  conduct.  This  act  is  unconstitutional. 
We  will  disregard  it,  and  punish  you  for  the 
attempt.'" 

James  Iredell,  quoted  by  all  writers  as  one 
of  the  stanchest  champions  of  judicial  control, 
did  not  urge  it  in  the  convention;  he  argued 
that  the  people  would  restrain  Congressional 
usurpation:73 

"Every  individual  in  the  United  States  will 
keep  his  eye  watchfully  over  those  who  admin- 
ister the  general  government,  and  no  usurpa- 
tion of  power  will  be  acquiesced  in.  The  pos- 
sibility of  usurping  powers  ought  not  to  be 
objected  against  it  [the  Constitution].  Abuse 
may  happen  in  any  government.  The  only 


110  THE  JUDICIAL  VETO 

resource  against  usurpation  is  the  inherent 
right  of  the  people  to  prevent  its  exercise.  This 
is  the  case  in  all  free  governments  in  the  world. 
The  people  will  resist  if  the  government  usurp 
powers  not  delegated  to  it." 

This  first  convention  adjourned  August  1, 
1788,  after  rejecting  the  Constitution  by  a  vote 
of  184  to  84.  The  ground  of  disapproval  was 
indicated  by  a  resolution  demanding  a  bill  of 
rights  and  "amendments  to  the  most  ambigu- 
ous and  exceptionable  parts  of  the  said  Consti- 
tution." The  proposed  amendments  include 
the  following:74 

"1.  That  each  State  in  the  Union  shall  re- 
spectively retain  every  power,  jurisdiction  and 
right,  which  is  not  by  this  Constitution  dele- 
gated to  the  congress  of  the  United  States  or  to 
the  departments  of  the  federal  government. 

"  15.  That  the  judicial  power  of  the  United 
States  shall  be  vested  in  one  supreme  court, 
and  in  such  courts  of  admiralty  as  congress 
may  from  time  to  time  ordain  and  establish  in 
any  of  the  different  States,"  etc.,  limiting  the 
jurisdiction  to  cases  arising  under  treaties  and 
between  certain  parties.  (This  amendment  is 
identical  with  Virginia's  fourteenth.) 

RHODE  ISLAND  took  no  action  whatever  until 


ANNULMENT  OF  LEGISLATION    111 

May  29,  1790,  when  she  ratified  and  at  the 
same  time  proposed  amendments  similar  to 
North  Carolina's  bill  of  rights  and  first  amend- 
ment; but  as  neither  the  debate  in  the  conven- 
tion nor  its  action  could  have  influenced  Con- 
gress directly,  I  will  not  extend  this  paper  by 
any  quotations.  But  during  the  period  of  in- 
action by  the  Rhode  Island  authorities,  the 
people  were  discussing  the  Constitution;  and 
the  following  qualified  approval  of  judicial 
control  was  published  by  "Solon  Junior"  in 
the  Providence  Gazette  and  Country  Journal  of 
August  9,  1788: 

"An  abundance  of  proof  lies  within  our  own 
observation,  of  the  prevalence  of  the  spirit  of 
the  times  over  the  dead  letter  of  laws  and  con- 
stitutions. During  the  war,  and  while  that  was 
the  rage  of  the  day,  was  not  an  act  passed  for 
putting  every  free-man  in  the  State  under 
martial  law,  to  be  inflicted  by  a  general  over 
whom  even  the  legislature  had  no  control?  — 
yet  the  people  bore  it  —  and  those  who  com- 
plained of  its  being  unconstitutional  were 
answered,  that  the  safety  of  the  people  is  the 
highest  law.  .  .  ." 

The  writer  proceeded  to  discuss  the  case  of 
Trevett  v.  Weeden,  in  which  the  state  court  had 


THE  JUDICIAL  VETO 

held  unconstitutional  a  law  limiting  trial  by 
jury,  and  the  action  of  the  voters  in  ousting 
the  judges.  "Had  that  privilege  [trial  by  jury]," 
he  continued,  "been  ever  so  safe  on  paper, 
and  a  phrenzy  seized  the  administration  similar 
to  that  under  which  this  State  at  a  certain  time 
laboured,  could  not  a  penal  law  have  passed 
congress,  and  been  enforced  by  a  federal  court 
—  or  a  federal  army  —  unless,  indeed,  they 
should  have  found  the  unconquerable  spirit  of 
an  Adams  in  that  court,  to  humble  the  pride  of 
usurped  power?" 

To  sum  up  this  partial  survey  of  the  evi- 
dences of  popular  intent,  from  the  adjourn- 
ment of  the  constitutional  convention  to  the 
opening  of  the  First  Congress,  I  conclude: 
(1)  That  the  theory  of  judicial  control  was 
sufficiently  familiar  to  be  presented  to  the  con- 
ventions of  most  of  the  States;  (2)  that  the 
Federalists  on  the  whole  accepted,  but  did  not 
strongly  urge  it;  (3)  that  the  Anti-Federalists 
either  did  not  accept  it  or  else  found  in  it  an 
argument  against  ratification;  (4)  that  in  no 
convention  was  it  a  conspicuous  issue,  that  in 
several  it  was  not  considered  seriously,  if  'at 
all,  and  that  in  none  was  it  a  question  which 
presumably  influenced  votes  or  on  which  the 


ANNULMENT  OF  LEGISLATION     113 

State  took  a  specific  stand;  (5)  that  to  all 
intents  and  purposes  it  was  swallowed  up  in 
the  larger  question  of  state  rights;  (6)  that  the 
States  which  proposed  amendments  in  the 
spirit  of  the  Tenth  Amendment  (Massachu- 
setts, South  Carolina,  New  Hampshire,  Vir- 
ginia, New  York  and  North  Carolina  —  be- 
sides substantial  minorities  in  Pennsylvania 
and  Maryland)  intended  thereby  to  make 
the  States  rather  than  the  federal  judiciary 
the  guardians  of  the  Constitution;  (7)  that  the 
jealousy  of  federal  authority  on  the  part  of  all 
of  these  States  extended  to  the  judiciary,  and 
was  so  pronounced  as  to  preclude  the  idea  that 
the  people  could  have  contemplated  vesting  in 
the  Supreme  Court  (much  less  in  any  inferior 
courts)  the  power  to  annul  an  act  of  Congress; 
their  intent  plainly  was  to  limit  the  influence 
and  activities  of  federal  courts  rather  than  to 
extend  them  by  any  possible  implication.  I 
conclude  further  that  Congress  by  proposing 
the  first  ten  amendments,  which  include  — 
"X.  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by 
it  to  the  States,  are  reserved  to  the  States, 
respectively,  or  to  the  people"  —  and  the  sev- 
eral States  by  ratifying  them,  intended  to 


114  THE  JUDICIAL  VETO 

reserve  to  the  States  the  authority  to  decide 
upon  the  constitutionality  of  acts  of  Congress 
(a  power  which  was  left  open  by  the  Constitu- 
tion itself,  and  therefore  not  delegated  to  the 
United  States),  and  that  the  logical  result  of 
their  action  was  to  do  so. 

This  view  I  consider  is  borne  out  by  the 
terms  of  the  judiciary  act  of  1789.  With  the 
realization  that  I  am  treading  on  dangerous 
ground  in  drawing  the  above  conclusions  and 
in  advocating  an  interpretation  of  the  judiciary 
act  pronounced  "absurd"  by  an  able  scholar, 
I  nevertheless  pass  on  to  the  consideration  of 
that  statute. 

The  Judiciary  Act  of  1789 

A  full  discussion  of  the  judiciary  act  would 
partake  too  much  of  the  nature  of  a  legal  brief 
to  be  permissible  in  this  article;  but  in  any  case 
I  am  concerned  not  with  what  the  judges  or 
law-writers  have  said  about  it,  but  with  what 
members  of  the  First  Congress  said  about  it 
and  with  what  its  language  presumably  meant 
to  them.  Unfortunately  the  annals  of  Congress 
give  no  record  of  Congressional  views;  nor  does 
Maclay's  Journal,  nor  any  newspapers  I  have 
seen.  Therefore  we  are  reduced,  once  for  all, 


ANNULMENT  OF  LEGISLATION    115 

to  the  statute  itself,  without  even  any  record 
of  amendments  to  guide  us. 

A  critical  study  of  the  Constitution  and  the 
statute  leads  me  to  the  following  conclusions: 
The  Constitution  leaves  to  Congress  not  only 
the  organization  of  the  entire  judiciary  depart- 
ment, but  also  the  practical  definition  of  its 
jurisdiction  except  in  a  negligible  number  of 
cases;  the  statute  does  not  use  apt  words  to 
give  any  federal  court  the  power  of  annulling 
statutes  as  unconstitutional;  but  on  the  con- 
trary, it  does  expressly,  by  an  elementary  canon 
of  construction,  deprive  the  Supreme  Court  of 
such  power. 

P  Looking  first  at  the  Constitution  itself,  we 
are  reminded  that  the  entire  subject  of  the 
judiciary  is  left  to  Congress,  with  the  single 
exception  that  there  shall  be  a  Supreme  Court 
with  original  jurisdiction  in  all  cases  affecting 
ambassadors,  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  a  party;  and 
that  the  "judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  this 
Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made, 
under  their  authority."  In  other  words,  if 
Congress  had  decided  to  organize  a  judiciary 


116  THE  JUDICIAL  VETO 

with  no  inferior  court  except  a  court  of  admir- 
alty, as  was  demanded  by  some  of  the  States, 
and  had  further  excepted  from  the  appellate 
jurisdiction  of  the  Supreme  Court,  as  it  had 
the  right  to  do,75  all  questions  of  unconstitu- 
tionally, the  Supreme  Court  could  not  possi- 
bly have  acquired  original  jurisdiction  over 
enough  cases  to  make  it  an  arbiter  of  con- 
stitutionality. It  was  a  thousand-to-one  shot 
that  no  such  case  would  ever  arise  within  the 
extremely  narrow  bounds  of  original  jurisdic- 
tion; and  perhaps  that  was  why  Chief  Justice 
Marshall,  when  by  extraordinary  chance 
Marbury's  case  came  before  the  Supreme 
Court  on  motion  and  not  by  appeal,  went  out 
of  his  way  to  deliver  his  manifesto  on  the 
annulment  of  unconstitutional  laws.  Even 
to-day  cases  of  original  jurisdiction  are  very 
rare;  and  it  may  well  happen  that  the  constitu- 
tionality of  an  act  of  Congress  will  never  again 
be  considered  in  such  a  case. 

Practically,  then,  Congress  had  the  situation 
in  its  own  hands.  Unless  it  wished  to,  there 
was  no  necessity  for  it  to  give  any  federal  court 
authority  to  decide  the  constitutionality  of  any 
federal  statute.  It  therefore  seems  unnecessary 
to  discuss  at  all  the  arguments  of  Mr.  Brinton 


ANNULMENT  OF  LEGISLATION    117 

Coxe  and  his  followers76  who  contend  that  the 
Constitution  expressly  gives  the  power  of 
annulment  to  the  Supreme  Court. 

Practically,  then,  what  did  Congress  do?  It 
was  in  a  position  to  mate  the  Supreme  Court 
custodian  of  the  Constitution  or  to  give  that 
authority  to  the  States.  Which  did  it  do?  The 
answer  is  contained  in  the  judiciary  act  of 
September  24,  1789  (1  Stat.  73,  chap.  20),  un- 
illuminated  by  any  of  the  usual  aids  to  statu- 
tory construction  —  precedent,  report,  debate, 
criticism,  or  record  of  amendment. 

That  act  is  largely  devoted  to  the  mere 
machinery  of  organization  —  division  of  the 
country  into  districts,  provision  for  sessions 
and  officers  of  court,  process,  and  like  matters. 
Its  significant  features  are  as  follows:  (1)  It 
creates  the  District  Courts  (sec.  3)  with  juris- 
diction (sec.  9)  of  certain  crimes,  admiralty 
and  revenue,  certain  cases  where  an  alien  sues, 
certain  suits  brought  by  the  United  States, 
and  suits  against  consuls  and  vice-consuls; 
(2)  it  creates  the  Circuit  Courts  (sec.  4)  with 
jurisdiction  (sec.  11)  in  certain  suits  brought 
by  the  United  States,  or  where  an  alien  is  a 
party,  or  between  citizens  of  different  States, 
over  certain  crimes  and  over  appeals  from  the 


118  THE  JUDICIAL  VETO 

District  Courts;  (3)  it  organizes  a  Supreme 
Court  (sec.  1)  with  original  jurisdiction  (sec.  13) 
cases  where  a  State,  an  ambassador,  public 
minister,  consul  or  vice-consul  is  a  party,  and 
appellate  jurisdiction  from  the  Circuit  Court 
(sec.  22),  and  also  (sec.  25)  from  a  state  court 
"where  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  an  authority  exercised 
under  the  United  States,  and  the  decision  is 
against  their  validity,"  and  where  a  state 
statute  is  questioned,  and  "where  is  drawn  in 
question  the  construction  of  any  clause  of  the 
Constitution,  or  of  a  treaty,  or  statute  of,  or 
commission  held  under  the  United  States,  and 
the  decision  is  against  the  title,  right,  privilege 
or  exemption  specially  set  up  or  claimed  by 
either  party  under  such  clause  of  the  said  Con- 
stitution, treaty,  statute  or  commission." 

I  am  unable  to  find  in  this  statute,  either 
expressly  or  by  implication,  any  grant  of  power 
to  annul  an  act  of  Congress.  It  is  highly  signifi- 
cant that  the  jurisdiction  of  none  of  the  courts 
is  extended  to  "cases  in  law  and  equity  arising 
under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority."  If  Congress  had 
intended  to  give  the  power  of  judicial  control, 


ANNULMENT  OF  LEGISLATION    119 

the  inevitable  inference  is  that  at  least  the 
words  of  the  Constitution  would  have  been 
inserted  in  the  statute  (as  they  were  by  Ran- 
dolph in  his  draft);  intending  not  to  give  it, 
Congress  need  only  omit  these  words.  It  may 
be  argued  that  the  insertion  of  these  words 
was  unnecessary;  that  if  any  courts  were  cre- 
ated, they  acquired  such  jurisdiction  by  opera- 
tion of  the  Constitution  itself.  This  invites  a 
highly  technical  line  of  discussion  which  cannot 
be  pursued  in  this  article;  but  I  may  express  the 
opinion  that  the  Constitution  does  not  directly 
vest  jurisdiction  in  any  inferior  court,  but  only 
describes  the  limits  of  possible  jurisdiction.  In 
any  case  it  cannot  be  supposed  that  Congress 
would  have  left  so  important  a  matter  to  mere 
construction;  and  it  is  the  intent  of  Congress 
that  we  are  seeking  —  its  actual,  human,  com- 
mon sense  intent,  and  not  a  fictitious  intent  by 
legal  implication. 

If  the  inferior  courts  had  no  such  authority, 
the  Supreme  Court  could  not  acquire  it  as  a 
normal  appellate  function.  Nor  is  such  author- 
ity expressly  given  by  the  statute.  On  the  con- 
trary, it  is  expressly  withheld. 

The  Supreme  Court  is  given  the  power  to 
reverse  or  affirm  the  decision  of  a  state  court 


120  THE  JUDICIAL  VETO 

adjudging  a  federal  statute  unconstitutional. 
In  other  words,  the  Supreme  Court  may  ac- 
quiesce in  the  action  of  a  State  annulling  a 
federal  statute;  or  it  may  reverse  the  State's 
decision,  and  pronounce  the  law  constitutional 
and  valid.  But  it  has  no  jurisdiction  to  decide 
of  its  own  accord  that  the  law  is  unconstitu- 
tional. That  this  result  was  intentional  is  the 
conclusion  from  one  of  the  elementary  canons 
of  construction  —  that  the  express  mention  of 
one  thing  is  the  exclusion  of  another.77  The 
authority  to  declare  an  act  of  Congress  uncon- 
stitutional is  expressly  granted  to  the  Supreme 
Court  on  an  appeal  from  a  state  judgment  so 
deciding;  therefore  it  is  withheld  in  all  other 
cases. 

To  pursue  this  branch  of  the  subject  farther 
would  be  to  invite  the  reader  into  an  argument 
already  unpardonably  technical.  It  remains, 
then,  only  to  sum  up  the  result  of  my  investi- 
gations. 

It  must  be  conceded,  I  think,  that  the  earlier 
writers  on  this  topic  were  too  hasty  in  their 
conclusions.  The  evidence  is  convincing  that 
judicial  control  was  a  familiar  conception  to 
many  of  the  lawyers  of  1787-89,  and  appealed 


ANNULMENT  OF  LEGISLATION    121 

to  a  majority  of  those  who  discussed  it  as  the 
logical  result  of  a  written  constitution.  By  a 
fair  proportion  it  was  advocated  as  desirable. 

But  the  precise  question  of  control  by  the 
United  States  Supreme  Court  over  acts  of 
Congress  had  a  very  different  standing  in  the 
debate.  It  was  opposed  by  all  those  who  dis- 
approved the  aggrandizement  of  one  branch  of 
the  government  at  the  expense  of  a  theoretically 
coordinate  branch;  and  it  was  disapproved  also 
by  those  who  favored  the  retention  by  the 
States  of  as  much  power  as  was  consistent  with 
a  stable  and  efficient  central  government. 

It  may  also  be  questioned  whether  the  theory 
of  judicial  control  was  widely  understood  or 
approved  outside  of  the  legal  profession.  It 
seems  that  most  of  the  laymen,  as  well  as  many 
lawyers,  regarded  the  question  of  constitu- 
tionality as  political  rather  than  legal. 

The  entire  subject,  though  discussed  in  the 
constitutional  convention,  was  left  open  in  the 
Constitution.  It  was  subordinated  in  those 
ratifying  conventions  of  whose  debates  we  have 
records,  and  in  the  newspapers  of  1787-88,  to 
the  great  question  of  state  sovereignty;  and  the 
doctrine  of  judicial  control  by  the  Supreme 
Court  was  expressly  and  strongly  opposed  by 


122  THE  JUDICIAL  VETO 

many  of  the  Anti-Federalists.  The  Constitu- 
tion was  ratified  by  so  narrow  a  margin  that  it 
would  have  been  a  distinct  breach  of  faith  not 
to  have  adopted  the  Tenth  Amendment,  re- 
serving to  the  States  and  the  people  the  powers 
not  delegated  to  the  federal  government,  one 
of  which  powers  was  that  of  deciding  upon  the 
constitutionality  of  acts  of  Congress.  And  the 
spirit  of  that  reservation  was  further  recog- 
nized and  given  effect  in  the  judiciary  act,  vest- 
ing in  the  state  courts,  but  not  in  the  federal 
courts,  the  power  to  annul  acts  in  contraven- 
tion of  the  Constitution. 

Xlf  this  reasoning  is  correct,  we  arrive  by  a 
different  path  at  the  conclusion  broached  by 
the  earlier  writers  —  that  our  forefathers  did 
not  give  the  United  States  Supreme  Court  the 
power  to  annul  acts  of  Congress. 


THE   END 


NOTES 


NOTES 

CHAPTER  I 

1.  Dartmouth  College  v.  Woodward,  4  Wheat.  518. 

2.  Ives  v.  South  Buffalo  Ry.,  201  N.  Y.  271. 

3.  See  chapter  m. 

4.  A  few  days  after  deciding  the  well-known  Ives  case, 
201  N.  Y.  271,  nullifying  the  workingmen's  compensa- 
tion act,  the  Court  of  Appeals  said  (Korn  v.  Lipman, 
201  N.  Y.  404)  that  although  a  man's  property  might 
be  taken  after  mailing  a  proper  notice  in  the  post 
office,  yet  mailing  the  same  notice  in  a  letter-chute  or 
post-box  would  not  be  due  process  of  law. 

5.  People  ex  rel.  Crossey  v.  Grout,  179  N.  Y.  417. 

6.  People  ex  rel.  Moskowitz  v.  Jenkins,  202  N.  Y.  53. 

7.  Matthews  v.  People,  202  111.  389. 

8.  Holden  v.  Hardy,  169  U.  S.  366. 

9.  In  re  Kemmeler,  136  U.  S.  436. 

10.  Slaughter-House  cases,  17  Wall.  36. 

11.  Davidson  v.  New  Orleans,  96  U.  S.  97. 

12.  Hopper  v.  Stack,  69  N.  J.  L.  562. 

13.  State  v.  M uUer,  48  Ore.  252. 

14.  Ritchie  v.  People,  155  111.  98. 

15.  Allgeyer  v.  Louisiana,  165  U.  S.  578,  589. 

16.  Dartmouth  College  v.  Woodward,  4  Wheat.  518. 

17.  It  took  nine  years  to  validate  the  eight-hour  law  in 
New  York. 

CHAPTER  H 

1.  C.  G.  Haines,  The  American  Doctrine  of  Judicial 
Supremacy,  pp.  122-38.  Professor  Haines  also  re- 
views the  early  judicial  decisions  on  constitutional 
law  and  the  early  political  discussions.  In  the  latter 


126  NOTES 

be  follows  Professor  Beard's  The  Supreme  Court  and 
the  Constitution  without  much  analysis. 
2.  See,  for  instance,  Kampner  v.  HawJcins,  4  Call,  150 
(Virginia,  1793) ;  Ogden  v.  Witherspoon,  2  Haywood, 
227  (North  Carolina,  1802) ;  Hayburn's  case,  2  Dallas, 
209  (Federal  Circuit  Court,  1792) ;  and  the  celebrated 
case  of  Marbury  v.  Madison,  1  Cranch,  137  (United 
States  Supreme  Court)  —  in  all  of  which  the  statutes 
in  question  were  at  least  arguably  valid;  and  Com- 
monwealth v.  Caton,  4  Call,  5  (Virginia,  1782) ;  and 
Trevett  v.  Weeden,  Varnum  (Rhode  Island,  1786)  — 
where  the  opinions  were  admittedly  obiter. 
—  S.  G.  E.  Walling,  Recollections  of  a  New  York  Chief  of 
Police,  pp.  56-60.  For  the  legal  aftermath,  see  People 
ex  rel.  McCune  v.  Board  of  Police  of  the  Metropolitan 
Police  District,  19  N.  Y.  188. 

4.  Cooley,  Constitutional  Limitations  (7th  ed.),  p.  259. 
Iowa  and  North  Carolina  protect  their  officials  and 
Texas  indicates  a  still  broader  doctrine. 

-  5.  Sumner  v.  Beeler,  50  Ind.  341. 

-  6.  People  v.  Tiphaine,  13  How.  Pr.  74. 

^7.  Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178. 

8.  Ives  v.  South  Buffalo  Ry.,  201  N.  Y.  271. 

9.  Matter  of  Jacobs,  98  N.  Y.  98. 

10.  People  v.  Williams,  189  N.  Y.  131. 

11.  See  Haines,  chap.  14. 

12.  See  chapter  i. 

13.  A  list  of  statutes  with  a  description  of  my  method  of 
classifying  them  will  be  found  in  the  Appendix. 

CHAPTER  in 

1.  It  should  be  observed  that  most  of  the  adverse  criti- 
cism of  courts  for  annulling  legislation  has  been  di- 
rected at  state  courts  reviewing  state  laws.  The 
question  raised  by  that  situation,  though  different 
from  the  historical  question  here  discussed,  is  similar 


NOTES  127 

in  its  present  political  aspects.  It  is  probable  that 
the  state  courts  were  greatly  influenced  by  the 
opinion  in  Marbury  v.  Madison. 

2.  W.  Clark,  address,  Congressional  Record,  July  31, 
1911;  W.  Tricket,  "Judicial  Dispensation  from  Con- 
gressional Statutes,"  American  Law  Review,  xn,  65; 
L.  B.  Boudin,  "Government  by  Judiciary,"  Political 
Science  Quarterly,  xxvi,  238;  G.  Roe,  "Our  Judicial 
Oligarchy,"  La  Follette's  Weekly  Magazine,  m,  no. 
25,  p.  7. 

-  8.  C.  A.  Beard,  The  Supreme  Court  and  the  Constitution; 

A.  C.  Mclaughlin,  The  Courts,  The  Constitution  and 
Parties. 

4.  Compare  the  reversal  of  attitude  of  many  of  the 
States  at  the  time  of  the  Hartford  Convention  of 
1814. 

-  5.  1  Cranch,  137. 

6.  "The  president  and  the  federal  independent  judges, 
so  much  concerned  in  the  execution  of  the  laws 
and  in  the  determination  of  their  constitutionality." 
Ford's  Pamphlets,  184. 

7.  Ford's  Pamphlets,  183. 

8.  Ford's  Pamphlets,  212. 

9.  "If  the  general  legislature  should  at  any  time  over- 
lap their  limits,  the  judicial  department  is  a  consti- 
tutional check.  If  the  United  States  go  beyond  their 
powers,  if  they  make  a  law  which  the  constitution 
does  not  authorize,  it  is  void;  and  the  judicial  power, 
the  national  judges,  who,  to  secure  their  impartiality, 
are  to  be  made  independent,  will  declare  it  to  be 
void."  Elliot's  Debates,  u,  196. 

10.  Elliot's  Debates,  i,  493. 

11.  Ford's  Pamphlets,  8. 

12.  "The  judges  who  are  bound  by  oath  to  support  the 
Constitution,   declare   against   this   law."    Elliot's 
Debates,  iv,  393. 

13.  Writings,  v,  293. 


128  NOTES 

14.  Farrand's  Reports,  in,  172,  220. 

15.  Ibid.,  m,  287. 

16.  Elliot's  Debates,  m,  p.  479. 

17.  Ford's  Pamphlets,  331. 

18.  K.  M.  Rowland,  Life  of  George  Mason,  u,  chap.  8. 

19.  Wharton's  State  Trials,  412. 

20.  Ford's  Pamphlets,  274. 

21.  Elliot's  Debates,  m,  121. 

22.  American  State  Papers,  Misc.  I,  23. 

23.  2  Dallas,  409. 

24.  Blair,  1782:  "The  court  had  power  to  declare  any 
resolution  or  act  of  the  legislature  or  of  either  branch 
of  it,  to  be  unconstitutional  and  void.'* 

Hamilton,  1788:  "The  courts  of  justice  whose 
duty  it  must  be  to  declare  all  acts  contrary  to  the 
manifest  tenor  of  the  Constitution  void." 

King,  1787:  "The  judicial  ought  not  to  join  in  the 
negative  of  a  law  because  the  judges  will  have  the 
expounding  of  those  laws  when  they  come  before 
them;  and  they  will  no  doubt  stop  the  operation  of 
such  as  shall  appear  repugnant  to  the  Constitution." 

G.  Morris,  1787:  "He  could  not  agree  that  the 
judiciary,  which  was  a  part  of  the  executive,  should 
be  bound  to  say  that  a  direct  violation  of  the  Con- 
stitution was  law." 

Williamson,  1787:  "Such  a  prohibitory  clause  is 
in  the  constitution  of  North  Carolina,  and,  though 
it  has  been  violated,  it  has  done  good  there  and 
may  do  good  here,  because  the  judges  can  take  hold 
of  it." 

Wilson,  1788:  "If  a  law  should  be  made  inconsis- 
tent with  those  powers  vested  by  this  instrument  in 
Congress,  the  judges  .  .  .  will  declare  such  law  to  be 
null  and  void." 

25.  A  quotation  from  Sherman's  "Countryman"  letters, 
printed  on  pp.  83,  84,  indicates  that  he  did  not  rely 
on  judicial  control. 


NOTES  129 

26.  New  York  Journal  and  Weekly  Register,  XLH,  no.  24, 
March  20,   1788. 

27.  Vol.  iv,  468. 

28.  "It  is  their  [the  judiciary's]  province  to  decide  upon 
our  laws,  and  if  they  find  this  clause  to  be  unconsti- 
tutional, they  will  not  hesitate  to  declare  it  so." 

29.  Bedford,  1787:  "The  representatives  of  the  people 
.  .  .  ought  to  be  under  no  external  control  what- 
ever." 

Mercer,  1787:  "He  disapproved  of  the  doctrine 
that  the  judges  as  expositors  of  the  Constitution 
should  have  authority  to  declare  a  law  void." 

Spaight,  1787:  "It  is  immaterial  what  law  they 
[the  judges]  have  declared  void:  it  is  their  usurpa- 
tion of  the  authority  to  do  it  that  I  complain  of." 

30.  Elliot's  Debates,  i,  506. 

81.  J.  B.  Thayer's  John  Marshall,  65. 
32.  Elliot's  Debates,  i,  126. 

83.  Von  Hoist,  Constitutional  History,  I,  63. 

84.  McMaster  and  Stone,  Pennsylvania  and  the  Federal 
Constitution,  766. 

35.  Ibid.,  255,  259,  269. 
86.  Ibid.,  445,  478,  489. 

37.  Ibid.,  562. 

38.  Ford's  Documents,  126. 

39.  McMaster  and  Stone,  623. 

40.  Ibid.,  659. 

41.  The  original  is  reproduced  in  Ford's  Pamphlets,  25. 
Webster  adds  a  footnote:  "Any  powers  not  promo- 
tive  of  these  purposes  will  be  unconstitutional;  — • 
consequently  any  appropriations  of  money  to  any 
other  purpose  will  expose  the  congress  to  the  resent- 
ment of  the  States,  and  the  members  to  impeachment 
and  the  loss  of  their  seats." 

42.  P.  L.  Ford's  Essays  on  the  Constitution,  211. 

43.  Elliot's  Debates,  11,  85. 

44.  Ibid.,  93. 


130  NOTES 

45.  Elliot's  Debates,  n,  131. 

46.  Ibid.,  71. 

47.  Ibid.,  174. 

48.  Ibid.,  I,  322. 

49.  Ibid.,  n,  549. 

50.  Ford's  Pamphlets,  234. 

51.  Elliot's  Debates,  iv,  269. 

52.  Debates  on  Adopting  the  Federal  Constitution  in  the 
State  of  South  Carolina,  21. 

53.  Ibid.,  71. 

54.  Elliot's  Debates,  1,  325. 

55.  Ibid.,  v,  553. 

56.  Ibid.,  563. 

57.  Ibid.,  18. 

58.  Ibid.,  186. 

59.  Ibid.,  299. 

60.  Ibid.,  443. 

61.  Ibid.,  ra,  325,  539,  541* 

62.  Ibid.,  i,  327. 

63.  ZfewZ.,  ra,  659. 

64.  Ford's  Pamphlets,  312. 

65.  F.  Childs,  Debates  and  Proceedings  of  the  Convention 
of  the  State  of  New  York,  113. 

66.  See  Speeches  of  John  Lansing,  Jr.,  and  John  Williams, 
ibid.,  75,  91,  96. 

67.  Ibid.,  123. 

68.  Elliot's  Debates,  1,  327. 

69.  Ibid.,  331. 

70.  Ford's  Essays,  295. 

71.  Elliot's  Debates,  iv,  71. 

72.  Ibid.,  161. 

73.  Ibid.,  185. 

74.  Ibid.,  n,  244. 

75.  "In  all  the  other  cases  before  mentioned  [cases  with- 
in the  judicial  power,  but  where  the  supreme  court 
has  no  original  jurisdiction],  the  supreme  court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact, 


NOTES  131 

with  suck  exceptions,  and  under  such  regulations,  as 
the  congress  may  make."  Constitution,  Art.  m,  Sec.  2. 

76.  B.  Coxe,  Judicial  Power  and  Unconstitutional  Legis- 
lation; J.  H.  Dougherty,  Power  of  Federal  Judiciary 
over  Legislation. 

77.  Stimson's  Law  Dictionary  —  expressio  unius  est  ex- 
clusio  alterius. 


APPENDIX 


APPENDIX 
NEW  YORK  STATUTES  ADJUDICATED 

THE  classification  of  statutes  here  attempted  is 
based  on  judicial  decisions  to  June  1, 1912. 

In  determining  the  group  to  which  each  statute 
should  be  assigned,  about  equal  weight  has  been 
given  to  the  subject-matter  of  the  statute  and  the 
ground  of  attack.  Neither  of  these  tests  is  hi  itself 
wholly  satisfactory. 

It  is  almost  a  matter  of  course  to  argue  that  every 
statute  violates  the  Fourteenth  Amendment.  If 
it  were  not  for  the  undue  weight  that  this  line  of 
attack  would  give  to  the  "Social  and  Economic" 
group,  it  would  be  more  satisfactory  to  base  the 
classification  wholly  on  the  constitutional  prin- 
ciple involved.  And  that  method  would  also  permit 
a  grouping  which  would  distinguish  the  laws  an- 
nulled upon  purely  technical  grounds,  such  as  in- 
sufficient title.  But  after  several  experiments,  it 
seemed  best  to  adopt  a  few  rather  comprehensive 
headings  adapted  to  the  subject-matter  of  the  legis- 
lation and  to  give  weight  to  both  the  general  pur- 
pose of  the  statute  in  question  and  the  particular 
topic  of  the  paragraph  attacked. 

Where  there  has  been  any  option  among  the 
groups,  the  statute  has  always  been  assigned  to 
the  most  specific.  In  order  of  preference,  "Local 
and  Private"  have  been  regarded  as  most  general; 


136  APPENDIX 

"Administrative"  and  "Social  and  Economic" 
next;  then  "Highways  and  Waterways"  and  "Judi- 
ciary, Legislature  and  Military,"  and  finally  "Elec- 
tions," "Public  Service,"  and  "Taxes  and  Assess- 
ments" as  most  specific. 

The  date  of  the  statute  does  not  indicate  (except 
as  a  limit)  when  its  constitutionality  was  passed 
upon;  and  consequently  a  comparison  by  dates  can- 
not confidently  be  relied  upon  to  prove  any  tend- 
ency on  the  part  of  the  courts.  Attention  may,  how- 
ever, be  called  to  the  great  increase  of  late  years 
in  the  "Social  and  Economic"  group,  and  the  pro- 
portionately much  greater  increase  in  the  number 
of  statutes  of  that  class  adjudged  unconstitutional. 

A  group  of  statutes,  or  a  statute  with  a  series  of 
amendments,  all  relating  to  a  single  subject  and  all 
attacked  together  upon  the  same  ground,  is  counted 
as  one  statute.  The  laws  so  grouped  together  are 
indicated  by  corresponding  exponents,  e.g.  —  Laws 
of  1906,  c.  909,  §  573;  1909,  c.  22,  §1223;  1911, 
c.  891 3  —  these  three  counting  as  one. 

Where  different  parts  of  a  single  statute  are  atr 
tacked  upon  different  grounds,  whether  in  the  same 
case  or  in  different  cases,  each  section  adjudicated 
is  counted  as  a  separate  statute.  This  is  particularly 
true  of  city  charters  and  the  Consolidated  Laws, 
all  of  which  are  for  convenience  tabulated  like 
ordinary  session  laws. 

It  often  happens  that  a  single  statute  is  pro- 
nounced unconstitutional  in  part  only.  In  such 
cases  the  statute  is  counted  for  both  negative  and 
affirmative  and  is  printed  in  italics  in  the  tables. 


APPENDIX  137 

ADMINISTRATIVE 

Constitutional 
Revised  Laws,  vol.  2,  p.  368,  sec.  81;  p.  436,  sec.  236. 


Code  of  Civil  Procedure,  sec.  709;  sec. 
Laws  of  1797,  c.  51. 

1806,  c.  53. 

1813,  c.  86;  1816,  c.  1. 

1828,  c.  447. 

1830,  c.  582;  c.  320;  1838,  c.  332.  'i 

1844,  c.  3152;  1847,  c.  432;  c.  426;  1849,  c.  194. 

1853,  c.  80;  c.  230,  title  8;  c.  352;  c.  467;  1855,  c. 

407;  1857,  c.  337;  c.  339;  c.  344;  c.  405;  c.  485; 

c.  521;  c.  523;  c.  569;  1858,  c.  36;  1859,  c.  3022; 

c.  384. 

1860,  c.  509;  1861,  c.  308;  c.  3332;  1863,  c.  18s; 

c.  2273;  c.  393;  1864,  c.  4022;  1865,  c.  29;  c.  249; 

c.  5542;  c.  564;  c.  565;  1866,  c.  74;  c.  3472;  c.  4832; 

c.  730;  1867,  c.  5863;  c.  70S3;  c.  956;  1868,  c.  571; 

c.  8533;  1869,  c.  483;  c.  9023. 

1870,  c.  137;  c.  273;  c.  291;  c.  374;  c.  383,  sec.  27; 

1871,  c.  5;  c.  460;  c.  485;  c.  810;  1872,  c.  9;  c.  219; 
c.  2933;  c.  580;  c.  771;  1873,  c.  285;  c.  335,  sec.  2; 
c.  335,  sec.  25;  c.  335,  sec.  73;  c.  335,  sec.  114; 
c.  779;  1874,  c.  323;  c.  547;  c.  628;  c.  638;  1875, 
c.  49;  c.  300;  c.  400;  c.  6052;  1877,  c.  642;  c.  4592; 
1878,  c.  75;  c.  317;  1879,  c.  85*;  c.  892;  c.  2132; 
c.  4672. 

1880,  c.  14,  sec.  179;  c.  14,  sec.  276;  c.  284;  c.  377; 
c.  521;  1881,  c.  1442;  c.  183;  c.  559;  1882,  c.  344; 
c.  359;  1S83,  c.  3192;  c.  336;  c.  $51f;  c.  412;  c.  465; 
c.  490;  1884,  c.  4102;  c.  516;  c.  522;  1885,  c.  17; 
c.  2702;  c.  428;  1886,  c.  120,  sec.  207;  c.  335;  1887, 
c.  462;  1888,  c.  29;  c.  3092;  1889,  c.  161;  c.  2912; 
c.  382. 

1890,  c.  55;  c.  314s;  c.  523;  1891,  c.  46;  c.  33; 
c.  245;  1892,  c.  54;  c.  182,  sec.  181;  c.  358; 


138  APPENDIX 

c.  379;  c.  397;  c.  466;  c.  488,  sec.  238;  c.  5566; 
c.  603;  c.  686,  sees.  31-33;  c.  686,  sec.  372;  1893, 
c.  573;  1894,  c.  5285;  c.  7528;  1895,  c.  247;  c.  5195; 
c.  934;  c.  975;  c.  1018;  1896,  c.  74;  c.  178;  c.  727; 
c.  772;  c.  9022;  1897,  c.  108;  c.  220;  c.  378 
(Greater  New  York  Charter,  revised  by  Laws  of 
1901,  c.  466),  sec.  382;  sec.  475;  sec.  739;  sec.  998; 
sec.  1172;  sec.  1570;  1898,  c.  182,  sec.  180;  c.  182, 
sec.  184;  c.  588;  1899,  c.  128,  sec.  254;  c.  1332; 
c.  370;  c.  624. 

1900,  c.  658;  1901,  c.  33;  c.  89;  c.  466;  c.  7043; 
c.  7053;  c.  7063;  1902,  c.  270;  c.  506;  1905,  c.  501; 
c.  646;  1907,  c.  429;  c.  711;  1909,  c.  64,  sec.  53. 

Unconstitutional 

Code  Civ.  Proc.,  sec.  709;  sec.  1481. 
Laws  of  1808,  c.  216. 

1843,  c.  88. 

1850,  c.  262;  1853,  c.  230,  tit.  8;  1854,  c.  386; 

1857,  c.  569,  sec.  20;  1858,  c.  321. 

1860,  c.  449;  1866,  c.  214,  tit.  2,  sec.  2;  c.  217; 

c.  586;  1867,  c.  410;  c.  806;  1868,  c.  45;  c.  5532; 

1869,  c.  962. 

1870,  c.  77;  c.  374;  c.  467;  c.  700;  1871,  c.  385; 
c.  566;  1873,  c.  638;  1878,  c.  253;  1879,  c.  85. 
1881,  c.  456;  1882,  c.  251;  1883,  c.  354. 

1893,  c.  148;  1895,  c.  344;  c.  934;  c.  1018;  1896, 
c.  424;  c.  427;  c.  772;  1898,  c.  398;  1899,  c.  370, 
sec.  13;  c.  687. 

1901,  c.  178;  c.  466;  1902,  c.  127;  c.  473;  1903, 
c.  383;  c.  515;  1904,  c.  629;  1906,  c.  431;  1912, 
c.  548. 

ELECTIONS 

Constitutional 

Laws  of  1853,  c.  80;  1858,  c.  22. 

1865,  c.  365,  tit.  9,  sec.  18;  1869,  c.  912,  tit.  3, 
sec.  10. 


APPENDIX  139 

1872,  c.  575;  1873,  c.  84. 

1891,  c.  105,  sec.  2712;  1895,  c.  8052. 

1905,  c.  689;  1908,  c.  521;  1909,  c.  22,  sec.  123; 
1911,  c.  649. 

Unconstitutional 

Laws  of  1867,  c.  194. 

1892,  c.  214. 

1906,  c.  909,  sec.  573;  1907,  c.  538;  1909,  c.  22, 
sec.  1223;  sec.  136;  sec.  159;  sec.  1942;  sec.  331; 
1911,  c.  649*;  c.  8913. 

HIGHWAYS  AND  WATERWAYS 

Constitutional 

Rev.  Laws,  vol.  2,  p.  412;  440,  sec.  178;  Rev.  Stat.,  vol.  1, 

p.  226,  sec.  49;  512,  sees.  68-74. 
Laws  of  1817,  c.  262;  1819,  c.  18. 

1823,  c.  Ill;  1826,  c.  185,  sec.  54. 

1830,  c.  56;  c.  135;  1833,  c.  3192;  1838,  c.  1562. 

1845,  c.  1812;  1846,  c.  244;  1847,  c.  4552;  1848, 

c.  90;  1849,  c.  3522. 

1850,  c.  158;  c.  283;  1853,  c.  62;  1854,  c.  87;  1855, 

c.  164;  c.  296;  1857,  c.  136;  c.  2672;  c.  417;  c.  498; 

c.  639. 

1860,  c.  4882;  1861,  c.  3402;  1862,  c.  487;  1864, 

c.  25;  c.  547;  1866,  c.  367;  1867,  c.  697;  c.  945; 

1869,  c.  2622;  c.  8553. 

1870,  c.  55;  c.  160;  c.  291,  tit.  7,  sec.  22;  c.  373; 
c.  6233;  1871,  c.  3402;  c.  6743;  1872,  c.  2853;  c. 
5003;  c.  872;  1873,  c.  3233;  c.  528;  1874,  c.  256; 
c.  287;  c.  604;  c.  647;  1875,  c.  2;  c.  91;  c.  482;  c. 
6042;  1876,  c.  1352;  c.  1472;  c.  445;  1877,  c.  165; 
1878,  c.  171;  c.  190;  c.  4103;  1879,  c.  2532;  c.  3452. 
1880,  c.  3183;  1881,  c.  3263;  c.  469;  c.  554;  1882, 
c.  410,  sec.  86;  c.  410,  sees.  715-716;  1884,  c. 
1872;  c.  5343;  c.  5462;  1885,  c.  4142;  c.  451;  c. 


140  APPENDIX 

4993;  1886,  c.  658;  1887,  c.  113;  c.  136;  c.  205; 

c.  557;  c.  7163;  1888,  c.  193;  c.  325. 

1890,  c.  249;  c.  315;  c.  568,  sec.  89;  1892,  c.  411; 

c.  493;  1893,  c.  537;  c.  6942;  1895,  c.  1006;  1896, 

c.  338. 

1903,  c.  147;  1904,  c.  734;  1905,  c.  476;  1910, 

c.  701. 

Unconstitutional 

Rev.  Laws,  vol.  2,  p.  2382;  416,  sec.  179;  Eev.  Stat.,  vol.  I, 

#.  513,  sec.  77;  3,  p.  3182. 
Laws  of  1801,  c.  1272. 

1813,  c.  622. 

1847,  c.  375;  1849,  c.  184,  sees.  60-64. 

1850,  c.  264;  1851,  c.  2072;  c.  485;  1855,  c.  164; 

c.  296. 

1868  c.  522;  c.  687;  c.  717;  c.  776;  1869,  c.  507; 

c.  070;  c.  850;  c.  880. 

1870,  c.  291,  tit.  7s;  c.  543;  c.  593;  1878,  c.  593. 

1880,  c.  114;  1881,  c.  3032;  1882,  c.  410,  sec.  677. 

1890,  c.  568,  sees.  106-116;  1891,  c.  1362;  c.  290; 

1892,  c.  411;  1893,  c.  6943;  1894,  c.  7122;  1897,  c. 

286. 

1901,  c.  466;  1906,  c.  419;  1907,  c.  93. 

JUDICIARY,    LEGISLATURE,    AND    MILITARY 

Constitutional 

Revised  Laws,  vol.  2,  p.  408,  sec.  177;  507,  sec.  8. 
Rev.  Stat.,  vol.  1,  p.  154,  sees.  13-14;  638,  sec.  92;  vol.  2, 

p.  516,  sec.  47;  727,  sec.  50. 
Code  of  Procedure,  sec.  6;  sec.  30;  sec.  33;  sec.  62;  sec. 

167;  sec.  282;  sec.  288. 
Code  Civ.  Proc.,  sec.  134;  sec.  162;  sec.  234;  sec.  432; 

sec.  435;  sec.  791*;  sec.  793*;  sees.  856-857;  sec. 

8732;  sec.  9702;  sees.  1422-1425;  sec.  1778;  sec. 

2122;  sec.  2706;  sees.  2798-2799. 


APPENDIX  141 

Code  Crim.  Proc.,  sec.  8;  sec.  56;  sec.  281;  sees.  293-295; 

sec.  313;  sec.  464s;  sec.  517;  sec.  528;  sec.  5433; 

sec.  5443. 
Laws  of  1821,  c.  211;  1823,  c.  138;  1825,  c.  324. 

1833,  c.  II2;  1834,  c.  199. 

1840,  c.  311;  1841,  c.  276;  1844,  c.  105;  c.  273; 

c.  315;  1845,  c.  1923;  1847,  c.  280,  sec.  16;  c.  470, 

sec.  27;  1848,  c.  37;  c.  153;  1849,  c.  121;  c.  226; 

c.  306. 

1850,  c.  102;  c.  283;  1851,  c.  180;  c.  272;  1852, 

c.  53;  c.  73;  c.  874;  1853,  c.  183;  c.  2173;  c.  238; 

c.  283;  c.  3523;  1854,  c.  96;  c.  127;  1855,  c.  86; 

c.  337;  1857,  c.  344,  sec.  34;  c.  4463;  c.  6282;  1858, 

c.  172;  c.  279;  c.  332;  1859,  c.  703. 

1860,  c.  16;  1861,  c.  31;  c.  158;  c.  210;  1862,  c. 

412;  c.  460;  1865,  c.  612;  1867,  c.  260;  1868,  c. 

8282;  1869,  c.  8562;  c.  883. 

1870,  c.  47;  c.  81,  sec.  214;  c.  129;  c.  2633;  c.  519, 

tit.  3,  sec.  7;  c.  741;  1871,  c.  57;  c.  859;  1872,  c. 

4752;  c.  629;  c.  838;  1873,  c.  239;  c.  3302;  c.  370; 

c.  4272;  c.  538;  1874,  c.  192;  c.  312;  c.  322;  c.  628; 

c.  656;  1875,  c.  91;  c.  166;  c.  479;  1876,  c.  196; 

c.  439;  1877,  c.  11;  c.  167;  c.  387;  1878,  c.  1862; 

1879,  c.  53,  sec.  622;  c.  390. 

1880,  c.  344;  c.  354;  1881,  c.  1822;  c.  532;  c.  682; 
1882,  c.  360;  c.  410,  sec.  1103;  1883,  c.  299,  sec.  7; 
c.  309;  1886,  c.  120,  sec.  76;  c.  672;  1887,  c.  554, 
tit.  5,  sec.  1;  1888,  c.  577;  1889,  c.  125. 

1891,  c.  2082;  1892,  c.  182;  c.  342;  1893,  c.  104; 
c.  204;  c.  279;  c.  4162;  c.  7212;  1895,  c.  565,  sec. 
833;  c.  601;  1896,  c.  243;  c.  378;  c.  559;  c.  853; 
1897,  c.  378  (Gr.  N.  Y.  Charter),  chap.  20, 
tit.  2,  sec.  1351;  sec.  1364;  sec.  1370;  c.  383; 
c.  414,  sec.  182;  1898,  c.  1993;  1899,  c.  34; 
c.  2893. 

1900,  c.  252;  1901,  c.  602;  1903,  c.  41;  1908,  c. 
503,  sec.  233;  1911,  c.  856. 


142  APPENDIX 

Unconstitutional 

Rev.  Stat.,  vol.  1,  p.  638,  sec.  1. 

Code  Proc.,  sec.  30;  sec.  69. 

Code  Civ.  Proc.,  sec.  263;  sec.  791* ;  sec.  793*;  sec.  920; 

sec.  14402;  sec.  17592;  sec.  3226. 
Laws  of  1824,  c.  2662;  1825,  c.  181*. 

1840,  c.  311;  1849,  c.  28;  c.  140. 

1850,  c.  295;  1852,  c.  374;  1853,  c.  217;  1859,  c.  10. 
1860,  c.  449,sec.  4;  1861,  c.  31;  1866,  c.  217;  1869, 
c.  569. 

1870,  c.  382;  c.  383,  sec.  49;  c.  467;  1871,  c.  282; 
c.  383,  sec.  49;  1872,  c.  629*;  c.  700;  1873,  c.  239; 
1874,  c.  1712;  c.  5452;  1876,  c.  193;  c.  196;  1878, 
c.  1862. 

1880,  c.  2652;  c.  480;  1881,  c.  415;  c.  532;  c.  564; 
c.  6812;  1882,  c.  410,  sec.  1103;  1886,  c.  418;  1887, 
c.  3842;  c.  4522;  c.  557. 

1890,  c.  56;  c.  58,  tit.  7,  sec.  11;  c.  561,  sec.  29; 
c.  7422;  1892,  c.  182;  c.  664;  1895,  c.  342;  1896, 
c.  22;  1897,  c.  378  (Gr.  N.  Y.  Charter),  sec.  1364; 
sec.  1392;  c.  417,  sec.  7;  1899,  c.  34;  c.  587. 
1901,  c.  466;  c.  602;  1902,  c.  5322;  1904,  c.  598; 
1907,  c.  603;  c.  751,  sec.  349. 

LOCAL  AND  PRIVATE 

Constitutional 

Rev.  Stat.,  vol.  1,  p.  452. 
Laws  of  1805,  p.  126;  1806,  c.  783. 
1815,  c.  893;  1816,  c.  563. 

1851,  c.  1002;  1852,  c.  9;  1853,  c.  204;  c.  2572; 
c.  442;  1855,  c.  347;  1857,  c.  14;  1859,  c.  392. 
1863,  c.  361,  sec.  9;  1864,  c.  3032;  1865,  c.  2332; 
1866,  c.  576;  1867,  c.  96;  c.  353;  1868,  c.  816. 
1870,  c.  767;  1871,  c.  5;  c.  301;  c.  715;  1872,  c. 
639;  1873,  c.  84;  1875,  c.  257;  1877,  c.  169;  c. 
4592;  1879,  c.  4672. 


APPENDIX  143 

1881,  c.  13;  1885,  c.  238;  c.  428;  1886,  c.  472; 
1888,  c.  541;  1889,  c.  17. 

1890,  c.  276;  c.  393;  1893,  c.  522;  1897,  c.  378 
(Gr.  N.  Y.  Charter),  chap.  17,  tit.  4;  1898,  c.  576. 
1900,  c.  767;  1901,  c.  89;  c.  402;  1908,  c.  466. 

Unconstitutional 

Laws  of  1807,  c.  114. 
1837,  c.  622. 

1840,  c.  160;  1848,  c.  76;  1849,  c.  1122. 
1863,  c.  361,  sec.  9;  1864,  c.  191;  1865,  c.  181; 
1868,  c.  254;  c.  577;  c.  8642;  1869,  c.  2822. 
1871,  c.  706;  1872,  c.  23. 

1881,  c.  13;  c.  637;  1885,  c.  377;  1886,  c.  244;  c. 
510. 

1891,  c.  42;  1895,  c.  167;  1896,  c.  141;  c.  448; 

1899,  c.  614;  c.  700. 

1900,  c.  252;  c.  614. 

PUBLIC  SERVICE 

Constitutional 

Code  Civ.  Proc.,  sec.  3379. 
Laws  of  1826,  c.  253. 

1831,  c.  43;  1839,  c.  218. 

1840,  c.  193;  1847,  c.  31;  1848,  c.  154;  c.  358; 

1849,  c.  284. 

1850,  c.  Ill;  c.  140*;  c.  158;  c.  215;  1851,  c.  389, 
sees.  285-292;  c.  497;  l'852,  c.  375;  1854,  c.  63; 
c.  271;  c.  2822;  1855,  c.  545;  1856,  c.  64;  1857,  c. 
156. 

1860,  c.  513;  1863,  c.  361;  1866,  c.  633 5;  1867, 
c.  393;  c.  846;  c.  9626;  1868,  c.  842;  1869,  c.  237; 
c.  260;  c.  907. 

1870,  c.  705;  1871,  c.  574;  1872,  c.  594;  c.  702; 
1873,  c.  5312;  c.  647;  c.7373;  1874,  c.  4302;  c. 
4482;  c.  478;  c.  648;  1875,  c.  249;  c.  422;  c.  595; 


144  APPENDIX 

c.  600;  c.  606;  1876,  c.  187;  c.  415*;  1877,  c.  646; 

1879,  c.  89 6. 

1880,  c.  191;  c.  582;  1881,  c.  3213;  1882,  c.  259; 
1884,  c.  252,  sec.  14;  c.  439;  c.  5343;  1885,  c.  4993; 
1886,  c.  163;  c.  268;  1887,  c.  7163;  1888,  c.  5832; 

1889,  c.  2362;  c.  531. 

1890,  c.  565,  sec.  78;  sec.  912;  sees.  93-105;  sec. 
1022;  1891,  c.  59;  c.  2452;  c.  259;  1892,  c.  151; 
c.  3063;  c.  339;  c.  340;  c.  6763;  1893,  c.  225;  c.  239; 
c.  4343;  1894,  c.  6932;  1895,  c.  5452;  c.  1027*;  1896, 
c,  338;  c.  649;  c.  8352;  1897,  c.  754. 

1901,  c.  466;  1905,  c.  357;  c.  358;  c.  6293;  c.  6303; 
c.  6313;  c.  757;  1907,  c.  428. 

Unconstitutional 

Laws  of  1850,  c.  140;  1852,  c.  356;  1854,  c.  271;  c.  282; 
1857,  c.  156,  sec.  12;  1858,  c.  2662. 
1860,  c.  2582;  1863,  c.  361;  1867,  c.  4892;  1868,  c. 
334. 

1870,  c.  282;  1873,  c.  1853;  c.  452;  1874,  c.  5033; 
1876,  c.  66;  1878,  c.  206. 

1880,  c.  577;  c.  682;  1881,  c.  4543;  1885,  c.  5542; 
1886,  c.  271;  c.  312. 

1891,  c.  59;  1893,  c.  459;  1894,  c.  719;  1895,  c. 
417;  c.  1027;  1898,  c.  151. 

1905,  c.  737. 

SOCIAL  AND  ECONOMIC 

Constitutional 

Rev.  Laws,  vol.  1,  p.  339;  vol.  2,  p.  445,  sec.  267. 

Rev.  Stat.,  vol.  1,  p.  452;  p.  603,  sec.  5;  p.  665,  sec.  28; 

p.  666,  sec.  29;  p.   677;  p.  678,  sec.  6;  vol.  2, 

p.  1008,  sec.  2;  sec.  3. 
Code  Civ.  Proc.,  sec.  3822;  sec.  4142;  sec.  15823;  sec.  1780; 

sec.  2323a;  sees.  2706-2714. 


APPENDIX  145 

Code  Crim.  Proc.,  sec.  3;  sec.  308;  sec.  371;  sec.  392;  sec. 

454. 
Penal  Code,  sec.  122;  sec.  41q;  sec.  79;  sec.  265;  sec.  267; 

sec.  292;  sees.  334  a-b;  sec.  364a;  sec.  383;  sec. 

884h;  sec.  5502;  sec.  675;  sec.  688. 
Penal  Law,  sec.  1340. 
Laws  of  1805,  c.  98. 

1816,  c.  1;  1817,  c.  137;  1818,  c.  259. 

1821,  c.  19. 

1830,  c.  2912;  1833,  c.  3002;  1834,  c.  372;  1836, 

c.  2422;  1837,  c.  430;  1838,  c.  266. 

1841,  c.  1682;  1843,  c.  1692;  1845,  c.  115;  1846, 

c.  274;  1847,  c.  4502;  1848,  c.  40;  c.  200*;  1849, 

c.  226;  c.  3752. 

1850,  c.  82;  1851,  c.  151;  c.  513;  1852,  c.  361;  c. 

384;  1853,  c.  539;  1854,  c.  402;  1855,  c.  428; 

1857,  c.  446,  sec.  52;  c.  628;  1858,  c.  838. 

1860,  c.  202;  c.  501;  c.  508;  1861,  c.  173;  1862, 

c.  63,  sec.  39;  c.  459*;  c.  482;  1866,  c.  466;  c.  578; 

1867,  c.  628;  c.  8142;  1869,  c.  678;  c.  834;  c.  885; 

c.  8882. 

1870,  c.  782;  c.  704;  1871,  c.  57;  c.  3032;  c.  721; 

1872,  c.  580;  c.  836;  1873,  c.  357;  c.  505,  sec.  51; 

c.  549;  c.  646;  1874,  c.  209;  c.  446;  1875,  c.  79; 

c.  6332;  1876,  c.  122;  c.  431;  1877,  c.  4662;  1878, 

c.  3152;  1879,  c.  153. 

1880,  c.  14,  sec.  40,  1[212;  c.  14,  sec.  218;  c.  362; 

c.  254;  c.  456;  c.  5452;  c.  5912;  1881,  c.  422;  c.  87; 

c.  1872;  c.  700;  1882,  c.  287;  c.  294;  c.  410,  sec. 

663;  1883,  c.  205;  c.  3172;  c.  3362;  1884,  c.  202; 

c.  4382;  1885,  c.  183;  c.  342;  c.  405;  1886,  c.  21; 

c.  141;  c.  2712;  c.  3102;  c.  572;  1887,  c.  172;  c.  84; 

c.  3772;  c.  479;  1888,  c.  1812;  c.  489;  c.  5552; 

c.  581;  1889,  c.  39*;  c.  403;  c.  282;  c.  380;  c.  385; 

c.  515. 

1890,  c.  400;  c.  401;  c.  564,  sec.  55;  c.  568;  1891, 

c.  105,  tit.  24,  sec.  504;  1892,  c.  182,  sec.  164; 


146  APPENDIX 

c.  6022;  c.  646;  c.  686,  sees.  125-126;  c.  689,  sec. 
52;  c.  711;  1893,  c.  189;  c.  2792;  c.  338,  sec.  222; 
c.  338,  sec.  322;  c.  352;  c.  661,  sec.  24;  c.  661,  sees. 
140,  153;  c.  661,  sec.  200;  1894,  c.  28,  sec.  92; 
c.  1153;  c.  317,  sees.  90-952;  1895,  c.  283;  c.  3982; 
c.  4123;  c.  570;  c.  572;  c.  823;  1896,  c.  112,  sec.  3; 
c.  112,  sec.  31c;  c.  112,  sec.  31e;  c.  378;  c.  448;  c. 
545,  sec.  622;c.  850;  1897,  c.  3772;  c.  415;  1898, 
c.  122;  c.  1812;  c.  422;  1899,  c.  385;  c.  515;  c.  690. 
1900,  c.  204;  c.  327,  sec.  452;  c.  667,  sees.  194, 199- 
201;  1901,  c.  466,  sec.  707a;  c.  466,  sec.  1172; 
1902,  c.  1944;  c.  3174;  c.  4953;  c.  572,  sec.  30;  c. 
600;  1903,  c.  132;  c.  1462;  c.  3262;  1904,  c.  569;  c. 
5884;  1905,  c.  21*1;  c.  582;  c.  6022;  c.  6032;  1906, 
c.  314;  c.  326;  c.  440;  c.  506;  1907,  c.  185;  c.  344; 
1908,  c.  144;  c.  429;  1909,  c.  9,  sec.  41;  c.  36,  sec. 
7a;  c.  36,  sees.  10-12;  c.  49;  1910,  c.  607. 

Unconstitutional 
Rev.  Stat.,  vol.  2,  p.  548. 
Code  Civ.  Proc.,  sec.  15822;  sec.  17592. 
Penal  Code,  sec.  41x;  sec.  17 la;    sec.  335a2;   sec.  342; 

sec.  384p2;  sec.  384q2;  sees.  615-6162;  sec.  640, 

1T  162;  sec.  640d2. 
Laws  of  1848,  c.  200. 

1855,  c.  164  ;c.  231. 

1862,  c.  459;  1866,  c.  466;  1867,  c.  372. 

1870,  c.  394. 

1880,  c.  59;  1882,  c.  410,  sees.  663-666;  1883,  c. 

93;  c.  205;  c.  317;  1884,  c.  60;  c.  202;  c.  272;  1886, 

c.  310;  1887,  c.  3772;  c.  4012;  c.  479;  c.  6912;  1888, 

c.  1812;  c.  543;  c.  555,  sec.  6a3;  c.  583,  tit.  14, 

sec.  51;  1889,  c.  39. 

1890,  c.  252;  c.  163;  1891,  c.  3642;  1893,  c.  338, 

sec.  272;  c.  4522;  1894,  c.  4983;  c.  623;  1895,  c.  384; 

c.  570;  c.  5723;  c.  635,  tit.  12,  sec.  3;  1896,  c.  112, 

sec.  282;  c.  383;  c.  448;  c.  529,  sec.  82;  c.  547,  sec. 


APPENDIX  147 

83J;  c.  803;  c.  908,  sec.  321s;  c.  931;  1897,  c.  281; 
c.  378  (Gr.  N.  Y.  Charter),  sec.  610;  sees.  707- 
711;  sec.  1501;  c.  415,  sec.  33;  c.  5062;  1898,  c. 
151;  1899,  c.  1923;  c.  5673;  c.  700. 
1900,  c.  5342;  c.  725;  c.  7422;  c.  7682;  1901,  c. 
1282;  c.  6402;  1902,  c.  528;  1903,  c.  184,  sec.  77; 
c.  2722;  1904,  c.  6572;  1905,  c.  $41*;  c.  572;  1906, 
c.  502;  1907,  c.  185;  c.  324;  1908,  c.  350;  c.  J&9; 
1909,  c.  29,  sec.  85;  c.  400;  1910,  c.  374,  sec.  290; 
c.  674. 


TAXES  AND  ASSESSMENTS 

Constitutional 

A.  Taxes 

Rev.  Stat.,  vol.  1,  p.  398,  sec.  2;  p.  7144. 
Laws  of  1813,  c.  86*. 

1837,  c.  304. 

1843,  c.  230;  1846,  c.  327;  1849,  c.  1784. 

1850,  c.  84;  c.  183;  1851,  c.  176;  1852,  c.  8;  1855, 

c.  327;  c.  335;  c.  427;  1857,  c.  5484. 

1861,  c.  143,  sec.  86;  c.  308;  1863,  c.  15;  1865,  c. 

97;  c.  215;  c.  453;  c.  694;  c.  761;  1867,  c.  96;  1869, 

c.  855;  c.  875;  c.  876. 

1870,  c.  137;  1872,  c.  836;  1873,  c.  119;  c.  643; 

c.  647;  1874,  c.  180;  1875,  c.  602;  c.  4822;  1879,  c. 

3823. 

1880,  c.  5422;  1881,  c.  3612;  c.  4023;  1882,  c.  287; 

c.363;  c.  383;  c.  410,  sec.  523;  1883,  c.  21;  c.  1142; 

c.  298;  c.  5163;  1884,  c.  1532;  1885,  c.  1632;  c.  2152; 

c.  448;  c.  483;  1886,  c.  143;  c.  224;  c.  656;  1887, 

c.  713;  1889,  c.  311. 

1892,  c.  143,  sec.  68;  1896,  c.  112,  sec.  28;  c.  908, 

sees.  1,  3;  c.  908,  sec.  1412;  1897,  c.  3122;  c.  3922- 

1899,  c.  128;  c.  712. 

1905,  c.  241;  c.  729;  1907,  c.  721. 


148  APPENDIX 

B.  Assessments 

Laws  of  1818,  c.  2102. 

1834,  c.  92;  1835,  c.  309. , 

1841,  c.  1712. 

1852,  c.  293;  1859,  c.  4842. 

1860,  c.  1002;  1861,  c.  2972;  1863,  c.  196;  1867, 

c.  360,  sec.  25;  1868,  c.  460;  c.  6312;  1869,  c.  3832. 

1872,  c.  5802;  c.  741;  c.  812;  1873,  c.  387,  sec.  18; 

1874,  c.  287;  c.  5882;  1875,  c.  369;  c.  633,  tit.  12, 

sec.  13. 

1881,  c.  554;  c.  689;  1885,  c.  131,  sec.  90;  1886,  c. 

622;  1887,  c.  136. 

1892,  c.  2892;  1895,  c.  817;  1897,  c.  324. 

1901,  c.  282;  c.  1332;  c.  466,  sec.  973;  1905,  c.  676; 

1907,  c.  91. 

Unconstitutional 
A.  Taxes 

Laws  of  1841,  c.  341. 
1872,  c.  734. 
1887,  c.  627. 
1906,  c.  414. 

B.  Assessments 

Laws  of  1844,  c.  86;  1846,  c.  1332;  1847,  c.  375a. 
1850,  c.  262;  1859,  c.  396,  sec.  24. 
1868,  c.  3142;  c.  673,  tit.  2,  sec.  13;  1869,  c.  217*. 
1870,  c.  608;  c.  6192;  1871,  c.  461,  tit.  10;  1872, 
c.  7152;  1878,  c.  277. 

1880,  c.  114;  1882,  c.  393;  1883,  c.  523,  sees. 
126-127;  1886,  c.  656. 
1901,  c.  2002;  c.  7192. 


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